     Case: 12-30845       Document: 00512256347         Page: 1     Date Filed: 05/29/2013




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

                                                                            FILED
                                                                           May 29, 2013
                                     No. 12-30845
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JASON SIMON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 5:11-CR-146-12


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jason Simon appeals the 360-month above-guidelines sentence imposed
following his guilty plea to conspiracy to advertise the distribution of child
pornography. He contends that his sentence is substantively unreasonable.
       We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. McElwee, 646 F.3d 328, 337 (5th Cir. 2011). Simon
preserved review of the substantive reasonableness of his sentence but did not
raise in the district court all of the specific arguments that he now raises. We

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30845    Document: 00512256347     Page: 2   Date Filed: 05/29/2013

                                 No. 12-30845

do not resolve the appropriate standard of review because Simon’s arguments
fail under either standard. See United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
      Simon argues that the district court did not properly weigh factors such
as his minor role in the conspiracy and his history and characteristics and that
these factors warranted a less severe sentence. However, these factors were
proffered in his sentencing arguments and in the presentence report (PSR). The
district court, which was in a superior position to find facts and assess their
import under 18 U.S.C. § 3553(a), considered these factors and concluded that
a non-guidelines sentence was proper. Simon’s disagreement with the district
court’s assessment of these factors does not show that his sentence is
unreasonable. See United States v. Gutierrez, 635 F.3d 148, 154 (5th Cir. 2011).
      According to Simon, the district court did not account for the avoidance of
unwarranted sentencing disparities among defendants. While the district court
must seek to avoid “unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,” § 3553(a)(6), the
court need not avoid disparities that are “warranted,” United States v.
Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir. 2008), or are between
codefendants who are not similarly situated. United States v. Stalnaker, 571
F.3d 428, 441-42 (5th Cir. 2009). Simon’s argument is based solely on the fact
that other defendants named in his indictment received less severe sentences.
Because he has alleged no information about these codefendants to demonstrate
that any sentencing disparity was unwarranted, he has not shown that the
district court failed to comply with § 3553(a)(6). See Id.; United States v.
Sanchez-Ramirez, 497 F.3d 531, 535 n.4 (5th Cir. 2007).
      Further, the record does not support Simon’s claim that the district court
gave overly significant weight to an improper factor, namely, unadjudicated
criminal conduct delineated in Simon’s PSR and in the Government’s sentencing
memorandum. The details of Simon’s other criminal conduct were set forth in

                                       2
    Case: 12-30845     Document: 00512256347      Page: 3    Date Filed: 05/29/2013

                                  No. 12-30845

reliable sources – offense and arrest reports summarized in the PSR and Simon’s
post-arrest admissions, which were delineated in the Government’s sentencing
memorandum. See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009);
United States v. Goncalves, 613 F.3d 601, 609 (5th Cir. 2010); see also United
States v. Harris, 702 F.3d 226, 229-31 (5th Cir. 2012) (noting conditions under
which district court may consider record of prior arrests at sentencing), cert.
denied, 81 U.S.L.W. 3580 (U.S. Apr. 15, 2013) (No. 12-9202). Because Simon did
not object to the depiction of his criminal conduct or offer rebuttal evidence to
show that this information was false, inaccurate, or unreliable, he has not shown
that the district court was not entitled to consider it in determining his sentence.
See United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
      The record supports that the district court engaged in detailed discussion
of the specific facts that it considered in balancing the § 3553(a) factors and did
not fail to take into account a factor that should have received significant weight,
give significant weight to an irrelevant or improper factor, or make a clear error
in balancing the § 3553(a) factors. See United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). Although the extent of the deviation from the 210 to 262 month
guideline range was significant, it was commensurate with the case-specific
reasons given by the district court, see McElwee, 646 F.3d at 338, and was not
more excessive than other deviations that this court has affirmed. See, e.g.,
United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010) (affirming a
216-month sentence when the applicable guidelines range was 46 to 57 months);
United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008) (affirming
concurrent terms of 120 months and 180 months of imprisonment from a range
of 41 to 51 months).
      Accordingly, the district court did not abuse its discretion or plainly err in
determining Simon’s sentence. The judgment of the district court is therefore
AFFIRMED.



                                         3
