United States v. Sonnier

Case: 22-20302 Document: 00516600575 Page: 1 Date Filed: 01/06/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-20302 FILED January 6, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus Tarek Keionte Sonnier,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CR-594-2 ______________________________

Before Smith, Southwick, and Douglas, Circuit Judges. Per Curiam:* Tarek Sonnier appeals his 24-month sentence for stealing or repro- ducing post office keys and for theft of mail. Although the advisory guidelines range was 8 to 14 months of imprisonment, the district court applied an upward variance to 24 months. Sonnier challenges the procedural and sub- stantive reasonableness of his sentence.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-20302 Document: 00516600575 Page: 2 Date Filed: 01/06/2023

No. 22-20302

First, Sonnier contends that the district court imposed a procedurally unreasonable sentence by failing adequately to explain the reasons for the upward variance. Sonnier failed to object to his sentence on this basis in the district court, so we review for plain error. See United States v. Mondragon- Santiago, 564 F.3d 357, 362–64 (5th Cir. 2009). Even if the court had committed a clear or obvious error in failing adequately to explain, Sonnier has not shown that his substantial rights were affected. See Puckett v. United States, 556 U.S. 129, 135 (2009). To show that the error affected his substantial rights, Sonnier must establish that it “affected the outcome in the district court.” Mondragon-Santiago, 564 F.3d at 364. To do so, he “must demonstrate a probability sufficient to undermine confidence in the outcome.” Id. (internal quotation marks and citation omit- ted). Because there is no indication that the court would have imposed a shorter sentence if it had sufficiently articulated its reasons for the variance, Sonnier has not shown that his substantial rights were affected. See id. at 364–65. Second, Sonnier maintains that the sentence is substantively unrea- sonable because he disagrees with the district court’s weighing of the sen- tencing factors. Because Sonnier properly preserved his challenge to reason- ableness, we review for abuse of discretion. See United States v. Burney, 992 F.3d 398, 399–400 (5th Cir. 2021). In imposing a non-guidelines sen- tence, a district court may consider factors already taken into account by the Sentencing Guidelines, including criminal history. United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). Our review of the record does not reveal that the district court gave significant weight to an irrelevant or improper factor or otherwise abused its discretion by failing to account for a factor that should have received significant weight or by committing a clear error of judgment in balancing the § 3553(a) factors. See Burney, 992 F.3d at 400. Moreover, as to the extent of the departure, this court has upheld propor-

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tionately similar and greater upward variances. See United States v. Jones, 444 F.3d 430, 433, 441–43 (5th Cir. 2006). Accordingly, the judgment is AFFIRMED.