* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51233

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TYRONE DAVID WESLEY

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CR-78-ALL

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Tyrone David Wesley appeals the sentence imposed following his guilty

plea to possession with intent to distribute five grams or more of cocaine base.

The district court sentenced Wesley to 120 months of imprisonment and four

years of supervised release. 

Wesley asserts that the district court erred in assessing two criminal

history points for his 1999 domestic violence conviction. As Wesley concedes,

this issue will be reviewed for plain error only. To demonstrate plain error, the
No. 06-51233

2

defendant bears the burden of showing that (1) there is an error, (2) the error is

plain, and (3) the error affects substantial rights. United States v. Olano, 507

U.S. 725, 732 (1993). If these conditions are satisfied, this court has the

discretion to correct the error only if it “seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.” Id. (internal quotation marks and

citation omitted). 

The record does not demonstrate a lack of representation for Wesley’s 1999

domestic violence conviction. Wesley has not sustained his burden to show that

his 1999 domestic violence conviction was constitutionally invalid. See United

States v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995); see also United States v. Vital,

68 F.3d 114, 120 (5th Cir. 1995). Accordingly, Wesley has not shown plain error

in the assessment of two criminal history points for his 1999 domestic violence

conviction. 

Wesley also asserts that the 120-month sentence was an abuse of

discretion and unreasonable. Based on an offense level of 25 and a criminal

history category of IV, Wesley’s advisory guidelines range was 84 to 105 months

of imprisonment. The district court determined that pursuant to U.S.S.G.

§ 4A1.3 and 18 U.S.C. § 3553(a), both an upward departure and a variance were

warranted. Using an offense level of 25 and a criminal history category of V, the

district court sentenced Wesley to 120 months of imprisonment. An upward

departure is reviewed for an abuse of discretion. United States v. Smith, 440

F.3d 704, 707 (5th Cir. 2006). A non-guidelines sentence is reviewed for

reasonableness. Id. at 706.

The district court upwardly departed under § 4A1.3, finding that Wesley’s

criminal history category under-represented the seriousness of his criminal

history. The district court also considered the factors in § 3553(a), such as the

need to protect the public from further crimes of the defendant. The district

court’s reasons for departing advance the objectives of § 3553(a) and are justified

by the facts of the case. See United States v. Zuniga-Peralta, 442 F.3d 345, 347
No. 06-51233

3

(5th Cir.), cert. denied, 126 S. Ct. 2954 (2006). The district court’s decision to

depart and the extent of the departure were not an abuse of discretion. See id.

Wesley further contends that his sentence is unreasonable because the

district court failed to consider and address certain mitigating circumstances.

The district court properly considered the § 3553(a) factors in determining

Wesley’s sentence. Because the district court did not fail to account for a factor

which should have received significant weight, give significant weight to an

improper factor, or make a clear error of judgment in balancing sentencing

factors, Wesley’s sentence is reasonable. See Smith, 440 F.3d at 707-09. 

Accordingly, the district court’s judgment is AFFIRMED.