1 The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-3161

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Billy Craig Underwood, *
* Appellant. *

___________ Submitted: March 29, 2011 Filed: May 24, 2011

___________ Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

___________ SHEPHERD, Circuit Judge.

Billy Craig Underwood pled guilty to wire fraud, 18 U.S.C . § 1343, and the district court 1 sentenced him to 108 months imprisonment. Underwood appeals his sentence, arguing that the district court erred in denying his request for a downward departure under secti on 5H1.6 of the United States Sentencing Guidelines, failed to properly consider the 18 U.S.C. § 3553(a) factors, and imposed an unreasonable sentence by declining to vary below the Guidelines range. We affirm.-2- I.

Underwood owned a title and escrow company that offered mortgage refinancing services. As stipulated in the plea agreement, Underwood devised and perpetrated a scheme to defraud in which he used the title and escrow company to close home mortgage refinancing transac tions, obtaining funds for refinancing from FDIC insured lenders by means of wire co mmunications in interstate commerce. At closing, Underwood caused to be preparedclosing documents and checks written on his title and escrow company account that reflected full payment of the original mortgages, and he represented that these lien holders would be paid in full. In fact, checks for the full payments of first and s econd mortgage lenders were never issued, and Underwood converted these funds for his own use in the operation of his businesses. The government initiated char ges against Underwood, and he pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343. Based on an offense level of 31 and a criminal history category of I, the district court calculated a Guidelines range of 108 to 135 months imprisonment.

Underwood sought a sentence outside the Guidelines range that would involve zero incarceration time through a downward departure under section 5H1.6 of the Guidelines, or alternatively, a variance unde r section 3553(a). He argued that his son Levi, who suffers from muscular dystrophy, requires around-the-clock care that Underwood’s wife cannot provide by herself. The districtcourt conducted a three-day evidentiary hearing in which it heard te stimony regarding Levi’s condition and care. After the hearing, the district court explained that it did not find the Underwoods’ testimony regarding Levi cred ible and based on the testim ony of Levi’s doctor, Levi could be cared for by his mother with o ccasional assistance from extended family or friends. Accordingly, the district court denied Underwood’s request for a sentence outside the Guidelines range and imposed a low-end Guidelines sentence of 108 months imprisonment.-3- II.

We review the sentencing decision of the district court under an abuse-ofdiscretion standard. Un ited States v. Lozoya , 623 F.3d 624, 625 (8th Cir. 2010). We will not reverse the sentence unless the district court committed a significant procedural error or the sentence is substantively unreasonable. Id.

Underwood first contends that the districtcourt procedurally erred in refusing to grant a downward departure under secti on 5H1.6 of the Guidelines. We do not review a district court’s decision to deny a defendant’s re quest for a downward departure unless the district court ha d an unconstitutional motive or erroneously believed it was without authority to grant the departure. United States v. Phelps , 536 F.3d 862, 868 (8th Cir. 2008), cert. denied , 129 S. Ct. 1390 (2009). Underwood argues only that the district court erroneously be lieved it was without authority to grant the departure, but the record does not support his contention. To the contrary, the district court correctly explained at sentencing th at family circumstances are not a factor ordinarily considered when sentencing a defendant under the Guidelines. See United States Sentencing Commission, Guidelines Manual , §5H1.6 (“In sentencing a defendant . . . family ties a nd responsibilities are not ordinar ily relevant in determining whether a departure may be warranted.”). The district court then articulated why it did not consider the departure warrantedin Underwood’s case despite his son’s condition. Because the district court neither had an unconstitutional motive nor erroneously believed it was without authority to gr ant a departure under section 5H1.6, we do not review its decision de nying Underwood’s requested departure.

Underwood next contends that the distri ct court committed procedural error by failing to consider his family circumstances as a relevant fact or under section 3553(a). See United States v. Hoffman , 626 F.3d 993, 998 (8th Cir. 2010) (explaining that the district court commits procedural error if it fails to consider a relevant factor that should have received significant weight). Although the district court did, as-4- Underwood points out, observe that secti on 3553(a) does not specifically list “family responsibilities” as a factor and that ma ny incarcerated defendants leave children behind, the district court also discusse d why a variance under section 3553(a) was not warranted in Underwood’s case despite his family circumstances. When this statement is considered in context with th e rest of the sentenci ng record, United States v. Jones , 563 F.3d 725, 729 (8th Cir.), cert. denied , 130 S. Ct. 273 (2009), the district court clearly considered Levi’s medi cal condition and Underwood’s role as a caretaker.

Finally, Underwood argues that his sent ence is substantively unreasonable because the district court failed to give suffi cient weight to his ro le as a caretaker of his disabled child and declined to vary downward from the Guidelines range. We review the substantive reasonableness ofa sentence under a deferential abuse-ofdiscretion standard. United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc). If the sentence imposed is with in the Guidelines range, we apply a presumption of reasonableness. United States v. Dodds , 532 F.3d 703, 705 (8th Cir. 2008).

Although the district court did not side with Underwood in the end, the court thoroughly considered Underwood’s role in caring for his son. The district court conducted a three-day hearing and listene d to testimony regarding Levi’s special needs. The court explained that it was choosing to credit the testimony of Levi’s doctor that Levi could be cared for by oneperson full-time with occasional assistance from others over the contrary testimony fr om the Underwoods. The district court discussed the section 3553(a) factors and why imposing only probation would not meet the sentencing goals outlinedin the statute. The cour t articulated its concern that absent incarceration, Underwood would enga ge in the same type of illegal activity again. Finally, the court c oncluded that despite Underwood’s family situation, it was imposing a sentence within the Guidelin es rather than sentencing Underwood to probation as he requested. No abuse of discretion occurred here.-5- III.

Accordingly, we affirm the senten ce imposed by the district court.

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