United States v. Sterling

* 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opinion should not be published and is not precedent except under the limited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
F I L E D
May 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30181
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER STERLING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:04-CR-178-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Walter Sterling appeals the sentence imposed following his
guilty-plea conviction of possession of a firearm by a convicted
felon. He argues that his sentence, a non-guideline upward devia-
tion to the statutory maximum of 120 months of imprisonment, was
unreasonable because the district court made an upward deviation
based on his criminal history without following the procedures for

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No. 05-30181
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making an upward departure under the guidelines based on his crim-
inal history.
The court calculated Sterling’s guidelines sentence range,
used that range as a frame of reference, and made a carefully ex-
plained upward deviation based primarily on Sterling’s criminal
history without making an upward departure under the guidelines.
This is the proper procedure when imposing a non-guideline sen-
tence. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006). Whether an upward departure would have been warranted is
immaterial, because the court made an upward deviation outside the
guidelines range, instead of an upward departure. See id. at 708
n.3. Sterling’s assertion that the sentence imposed was unreason-
able because the court imposed a non-guideline sentence instead of
an upward departure is unavailing. See id. at 708 & n.3.
Sterling further argues that the sentence was unreasonable
because the court did not adequately consider the mitigating fac-
tors that his offense conduct was of middling seriousness, that he
had established family relationships and was affected by his broth-
er’s death, that the best way to prevent recidivism was to treat
his drug addiction, and that the sentence would tend to lessen
guilty pleas and make the criminal justice system function less
smoothly. Because Sterling has not shown that the district court’s
greater consideration of other non-mitigating factors was unrea-
sonable, he has not shown that the decision to make an upward devi-
ation from the guidelines range was unreasonable. See United

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No. 05-30181
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States v. Reinhart, 442 F.3d 857, 863-64 (5th Cir. 2006) (holding
upward deviation reasonable where supported by proper factors, even
though some § 3553(a) factors operated in defendant’s favor).
Given the seriousness of Sterling’s criminal history and of-
fense conduct as found by the district court, the extent of the
deviation, while large, was not unreasonable. See United States v.
Smith, 417 F.3d 483, 491-93 (5th Cir. 2005) (holding upward depar-
ture from 41 months of imprisonment to statutory maximum of 120
months for unrepentant con-artist with long criminal history
reasonable).
AFFIRMED.

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