Case: 10-10769 Document: 00511470624 Page: 1 Date Filed: 05/09/2011




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

                                                 FILED
                                                                             May 9, 2011
                                     No. 10-10769
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

WILLIAM ANTHONY LINDSEY, JR.,

                                                   Defendant - Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-114-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       William Anthony Lindsey, Jr., appeals his sentence imposed following his
guilty-plea conviction of bank fraud and of making, possessing, and uttering a
counterfeit security. Six others, who were indicted for similar conduct, were not
charged in Lindsey’s indictment (co-participants). The district court departed
upwardly and, pursuant to advisory Sentencing Guideline § 4A1.3(a)(1),
sentenced Lindsey to, inter alia, concurrent terms of 120 months’ imprisonment.
Lindsey contends: the district court erred by assessing two criminal-history

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10769

points under former Guideline § 4A1.1(e), in the light of an amendment deleting
that provision; and his sentence is unreasonable.
      Although, post-Booker, the Guidelines are advisory only, and a sentence
is reviewed for reasonableness under an abuse-of-discretion standard, the
district court must still properly calculate the sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 

, 50-51
(2007). In that respect, its application of the Guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,

, 764 (5th Cir. 2008); United States v. Villegas, 

, 359
(5th Cir. 2005). Our court first examines whether the district court committed
any significant procedural error. 

. We next “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard”. 

the district court erred by assessing two criminal-history
points for recency, under former Guideline § 4A1.1(e), which, at the time Lindsey
was sentenced, provided: “Add 2 points if the defendant committed the instant
offense less than two years after release from imprisonment on a sentence
counted under (a) [sentences exceeding one year and one month] or (b)
[sentences of at least 60 days] or while in imprisonment or escape status on such
a sentence”. See U.S.S.G. Supp. to App. C, Amend. 742 (amended 1 Nov. 2010).
Lindsey was sentenced prior to the effective date of Amendment 742, which
deleted former Guideline § 4A1.1(e) and, thus, eliminated criminal-history points
based on recency. Because Amendment 742 has not been made retroactively
applicable, the district court correctly applied former Guideline § 4A1.1(e). See
U.S.S.G. § 1B1.10(c).
      Lindsey also contends his sentence is unreasonable because it is greater
than necessary to achieve 18 U.S.C. § 3553(a)’s sentencing goals, and it creates
an unwarranted disparity between his sentence and that of his co-participants,
in violation of 18 U.S.C. § 3553(a)(6).      In imposing Lindsey’s 120-month

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sentence, the district court departed upwardly from the advisory Guidelines
sentencing range of 77 to 96 months. As 

, a district court’s
decision to depart from the advisory sentencing range, and the extent of that
departure, is reviewed for abuse of discretion. E.g., United States v. Newsom,

, 733-34 (5th Cir. 2007) (citation omitted).
      Even though, prior to his sentence being imposed, Lindsey objected on
several grounds to the length of his potential sentence, it is arguable that plain-
error review applies to this issue because those objections fail to specifically
preserve the unreasonable-sentence contention he raises here.            It is not
necessary to decide whether we review only for plain error or, as discussed
above, for abuse of discretion because his contention fails under either standard
of review.
      The district court concluded that Lindsey’s criminal-history category
under-represented the seriousness of his criminal history, the likelihood that he
would recidivate, and the need to protect the public. See U.S.S.G. § 4A1.3(a)(1)
(“If reliable information indicates . . . defendants’s criminal history category
substantially under-represents the seriousness of [his] criminal history or the
likelihood that [he] will commit other crimes, an upward departure may be
warranted.”).   Despite its being greater than his co-participants’, Lindsey’s
sentence is not unreasonable because the court cited fact-specific reasons for
imposing it, and its reasons for imposing an upward departure adequately reflect
the 18 U.S.C. § 3553(a) sentencing factors.          See, e.g., United States v.
Zuniga-Peralta, 

, 347 (5th Cir. 2006) (upward departure not abuse
of discretion if district court’s reasons for departing advance 18 U.S.C.
§ 3553(a)(2) objectives and are justified by facts of the case). Further, Lindsey’s
contention regarding 18 U.S.C. § 3553(a)(6) is unavailing because that section
states that the court should consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty
of similar conduct”. (Emphasis added.) Lindsey has provided no information

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regarding the records of his co-participants. In absence of such, and in the light
of the district court’s analysis of Lindsey’s extensive criminal history, we can not
conclude that his sentence produces an unwarranted disparity or constitutes an
abuse of discretion. See, e.g., United States v. Smith, 

, 709 (5th Cir.
2006).
      AFFIRMED.




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