Case: 13-50066       Document: 00512417976         Page: 1     Date Filed: 10/24/2013




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

                                                                            FILED
                                                                         October 24, 2013
                                     No. 13-50066
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SEDRICK DEMON MCCARTHER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CR-296-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Sedrick Demon McCarther appeals his 60-month
above-guideline sentence, claiming that the sentence is greater than necessary
to achieve the sentencing goals of 18 U.S.C. § 3553(a) and is thus unreasonable.
We review sentences for substantive reasonableness under an abuse of discretion
standard. United States v. Johnson, 

, 471-72 (5th Cir. 2010).
McCarther’s complaint that the drug offense guideline, U.S.S.G. § 2D1.1, is not
empirically based is foreclosed by our precedent. See United States v. Duarte,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-50066    Document: 00512417976     Page: 2   Date Filed: 10/24/2013

                                 No. 13-50066

569 F.3d 528-29 (5th Cir. 2009); United States v. Mondragon-Santiago, 

 366-67 (5th Cir. 2009).
      Pointing out that he received a 36-month revocation sentence to run
consecutively to his instant sentence, McCarther contends that a shorter
sentence provides adequate deterrence. He also asserts that his personal history
supports a lesser sentence, noting that he had a close relationship with his
mother and siblings, struggled with substance abuse, and is attempting to find
ways to support his children.
      The record shows that the district court heard counsel’s argument on
McCarther’s behalf regarding his substance abuse problems and the lack of
aggravating circumstances. The court’s remarks also reflect that it gave greater
weight to McCarther’s long and serious criminal history, his continual
recidivism, his apparent need for greater deterrence, and the goal of protecting
the public from his wrongdoing. The district court considered the § 3553(a)
factors and gave individualized, case-specific reasons for its sentence. The
upward variance was not an abuse of discretion. See Johnson, 619 F.3d at
471-72; United States v. McElwee, 

, 338 (5th Cir. 2011). The
sentence is AFFIRMED.




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