United States v. Ellis , 206 F. App'x 325 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 30, 2006
Charles R. Fulbruge III
Clerk
No. 06-30132
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTINO C. ELLIS, also known as
Santino Christopher Ellis,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:05-CR-50070-2
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Santino Ellis appeals from a 96-month sentence on his guilty
plea conviction for possession of a firearm by a convicted felon.
Ellis argues that the 69-month upward departure was plainly
unreasonable based upon the district court’s consideration of a
prior arrest, employment and familial factors, and other criminal
conduct. We need not decide whether Ellis’s sentence was a
guidelines or a non-guidelines sentence because, in either case,
*
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this opinion should not be published and is not precedent except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.
No. 06-30132
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his sentence was not plainly unreasonable. See United States v.
Jones, 444 F.3d 430, 441 (5th Cir.), cert. denied, 126 S. Ct.
2958 (2006).
The district court did err in considering the drive-by
shooting incident to the extent it was considered only as a prior
arrest. See Jones, 444 F.3d at 434 and n. 6. However, Ellis
cannot demonstrate that but for this error he would not have
received an upward departure. See United States v. Mares, 402
F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
402 F.3d at 520. The record reflects in both the sentencing
transcript and in the written statement of reasons that the
district court issued the upward departure based upon Ellis’s
extensive criminal history which was underrepresented by his
criminal history score. See § 4A1.3. The court articulated
Ellis’s misdemeanor convictions for illegally carrying a weapon,
five prior convictions for drug-related charges, lack of
employment history, and a pending felony charge as reasons for
its upward departure.
With respect to the district court’s consideration of
employment and familial factors, the sentencing transcript and
statement of facts reflect that these factors were included as
part of the court’s consideration of the underrepresentation of
Ellis’s criminal history. With respect to the court’s
consideration of other pending charges, Ellis cannot demonstrate
No. 06-30132
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plain error as the court is permitted to consider this factor as
a basis for upward departure pursuant to § 4A1.3(a)(2)(D).
With respect to the extent of the upward departure, the
district court’s sentence was not unreasonable. The district
court’s 96-month sentence was 69 months more than the top of the
advisory guidelines range but well below the 10-year statutory
maximum for the offense. In light of the evidence before the
district court and the court’s articulation of its reasons for
protecting the public and deterring future criminal act, which
are consistent with 18 U.S.C. § 3553(a), the sentence is not
unreasonable. U.S. v. Reinhart, 442 F.3d 857, 864 (5th Cir.),
petition for cert. filed (June 5, 2006) (no. 05-11431).
Ellis argues that the district court erred in failing to
provide him notice of the court’s intent to depart upward from
the recommended guideline range. Because Ellis failed to object
to this issue, we review the issue for plain error. See Jones,
444 F.3d at 443. Ellis cannot demonstrate plain error with
respect to this issue because he has not demonstrated that, with
adequate notice, he could have swayed the district court not to
depart upward. See id.AFFIRMED.