United States v. Fleming

Case: 22-60623 Document: 00516840951 Page: 1 Date Filed: 08/01/2023

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 22-60623

FILED August 1, 2023

Summary Calendar

____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Demond Fleming,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:21-CR-99-1

______________________________

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam: *

Demond Fleming challenges the substantive reasonableness of the 160-month, above-guidelines sentence imposed following his guilty plea for possession of a firearm after a felony conviction and distribution of

Case: 22-60623 Document: 00516840951 Page: 2 Date Filed: 08/01/2023

No. 22-60623 methamphetamine. Our review is for an abuse of discretion. See Holguin- Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020).

Although Fleming asserts that the sentence he received is much higher than the guidelines range that he expected would apply based on his plea agreement, he points to no authority suggesting that this would be a basis for deeming a sentence substantively unreasonable. We also disagree with his assertion that the district court gave too much weight to his criminal history. Considering Fleming’s lengthy criminal record, which included convictions that did not count toward his criminal history score, the court did not abuse its discretion in finding that his criminal history weighed in favor of an above-guidelines sentence. See United States v. Smith, 440 F.3d 704, 708-09 (5th Cir. 2006). Additionally, despite Fleming’s dissatisfaction with the extent of the upward variance or departure, it is well within the range of those this court has affirmed. See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States v. Zuniga-Peralta, 442 F.3d 345, 346-48 (5th Cir. 2006).

We note as well that Fleming asks us to provide more guidance on what constitutes substantive reasonableness in sentencing, an invitation we decline. The district court’s judgment is AFFIRMED.