USA v. Ernesto Bell

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USA v. Ernesto Bell

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Case: 09-60791

Document: 00511170789

Page: 1

Date Filed: 07/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60791 S u m m a r y Calendar July 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E R N E S T O V. BELL, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 2:09-CR-9-1

B e fo r e GARWOOD, DENNIS and ELROD, Circuit Judges. P E R CURIAM:* E r n e s t o V. Bell, federal prisoner # 13214-045, appeals the 36-month s e n te n c e imposed following revocation of the term of supervised release imposed fo llo w in g his conviction in the Western District of Missouri for conspiracy to d is t r ib u t e 50 grams or more of cocaine base. Bell argues that the sentence im p o s e d is unreasonable. T h is court has declined to decide the appropriate standard of review for a s e n te n c e imposed upon revocation of supervised release in the wake of Booker.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-60791

Document: 00511170789 Page: 2 No. 09-60791

Date Filed: 07/13/2010

U n ite d States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). There is no need t o do so in this case, as the 36-month sentence imposed in this case is neither u n r e a s o n a b le nor plainly unreasonable. T h e term of imprisonment imposed by the district court in Bell's case was n o t in violation of law. See 21 U.S.C.§ 841(b)(1)(A)(iii); 18 U.S.C. §§ 3559(a)(1), 3 5 8 3 (e )(3 ). Although the sentence constitutes a substantial upward departure fr o m the advisory guidelines range, the sentence is not unreasonable or plainly u n r e a s o n a b le . The record in this case reflects that the district court considered t h e policy statements contained in the Guidelines and the 18 U.S.C. § 3553(a) fa c t o r s in fashioning the sentence and adequately explained the reason for the s e n te n c e selected. See United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1 9 9 4 ); United States v. Neal, 212 F. App'x 328, 332 (5th Cir. 2007). Accordingly, t h e judgment is AFFIRMED.

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