Case: 12-60036     Document: 00512036094         Page: 1     Date Filed: 10/29/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 29, 2012
                                     No. 12-60036
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PATRICK BEASLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:10-CR-78-4


Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Patrick Beasley appeals the 190-month sentence imposed following his
guilty plea conviction for wire fraud. He argues that his above-guidelines
sentence is procedurally and substantively unreasonable. Because Beasley
lodged no objections in the district court, review is for plain error. See Puckett
v. United States, 

, 134-35 (2009); see also United States v. Peltier,

, 391-92 (5th Cir. 2007). Under this standard, Beasley must show
a forfeited error that is clear or obvious and that affects his substantial rights.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-60036

See 

. If he makes such a showing, this court has the
discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. 

established any error in connection with his argument
that the district court erred by imposing an upward variance from the guidelines
sentencing range of 110 to 137 months of imprisonment without calculating a
departure under U.S.S.G. § 4A1.3.       Because the district court imposed a
variance, not a departure, the court was not required to calculate a departure
under § 4A1.3. See United States v. Mejia-Huerta, 

, 723 (5th Cir.
2007); see also United States Gutierrez, 

, 151-53 (5th Cir. 2011).
Beasley’s argument that the district court failed to provide notice that it would
impose a variance is foreclosed by Irizarry v. United States, 

, 713-16
(2008).
      Beasley’s final argument regarding the procedural reasonableness of his
sentence, that the district court erred by failing to give him notice that it
intended to rely at sentencing on victim testimony elicited at a codefendant’s
trial, fails on plain error review. Beasley is correct that the district court was
required to notify him of its intent to rely on the testimony so that he had the
opportunity to contest it. See United States v. Townsend, 

, 171-72
(5th Cir. 1995); see also United States v. Smith, 

, 866-67 (5th Cir.
1994). However, even if the court committed clear or obvious error by relying on
the testimony, Beasley has not shown that his substantial rights were affected
because he also has not shown a reasonable probability that he would have
received a lower sentence but for the error. See United States v. Davis, 

, 647 (5th Cir. 2010).    In particular, the district court gave a lengthy
justification for its sentence, stating that the sentence was based on the
seriousness of the offense, the history and characteristics of Beasley, and the
need to promote respect for the law, to protect the public from his future crimes,
and to provide adequate deterrence. Further, the court stated that its sentence

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                                       No. 12-60036

was based on similar sentences imposed on other “leaders and organizers in this
case that were involved in same or similar cases in federal court in other
jurisdictions that defrauded numerous elderly persons on previous occasions.”
The district court iterated that Beasley’s prior prison term had not deterred his
criminal behavior and that in the instant case, he had scammed 91 victims,
including 63 elderly victims, out of a substantial amount of money. Based on the
foregoing, Beasley has not established plain error in connection with the
procedural reasonableness of his sentence. See 

.
      Beasley also has not established that his sentence was substantively
unreasonable. Regarding his argument that the district court erred in varying
upward based on factors taken into consideration in calculating the guidelines
range, we have held that Booker1 implicitly rejected the argument that no
additional weight can be given to factors that are already included in calculating
the guidelines range. United States v. Williams, 

, 809 (5th Cir.
2008). In addition, because the district court imposed a variance, Beasley’s
sentence was not substantively unreasonable because the district court did not
calculate a departure under § 4A1.3(a)(1). See 

.
Further, Beasley cannot show any error based on the disparity in sentencing
between other defendants in similar cases because he has not shown that the
aggravating and mitigating circumstances in those cases were not
distinguishable from those present in his case. See United States v. Willingham,

, 544 (5th Cir. 2007). Finally, the extent of the variance was
reasonable in light of the totality of the circumstances. See Gall, 

, 50-
51 (2007); see also United States v. Key, 

, 475-76 (5th Cir. 2010)
(affirming a 216-month sentence when the applicable guidelines range was 46
to 57 months); United States v. Jones, 

, 433 (5th Cir. 2006) (holding




      1
          United States v. Booker, 

(2005).

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                              No. 12-60036

the upward departure from guidelines range of 46-57 months to statutory
maximum of 120 months was reasonable).
     AFFIRMED.




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