United States v. Ellsworth

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2008
No. 07-31058
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL A ELLSWORTH
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-171-1
Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Michael A. Ellsworth appeals the 60-month non-guidelines sentence
imposed following his guilty plea conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Ellsworth argues for the first time
on appeal that his sentence is substantively unreasonable because it reflects the
district court’s consideration of a prior conviction for illegal possession of a
firearm, for which he asserts he was unrepresented.
*
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should not be published and is not precedent except under the limited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. 07-31058
When the district court imposes a non-guidelines sentence, we “may
consider the extent of the deviation, but must give due deference to the district
court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the
extent of the variance.” Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
Even if we “might reasonably have concluded that a different sentence was
appropriate, [this] is insufficient to justify reversal of the district court.” See id.We “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 59; see United States
v. Rodriguez, 523 F.3d 519, 524-25 (5th Cir. 2008), petition for cert. filed (June
30, 2008) (No. 08-5101). The district court provided extensive justification for
the sentence and concluded that a non-guidelines sentence of 60 months of
imprisonment was appropriate. In light of the deferential standard set forth in
Gall, 128 S. Ct. at 597-98, we find that the sentence imposed by the district court
was not substantively unreasonable or an abuse of discretion.
Ellsworth also argues that the district court was required to provide him
with notice before imposing a non-guidelines sentence. As Ellsworth concedes,
this argument is foreclosed by circuit precedent. United States v. Mejia-Huerta,
480 F.3d 713, 722-23 (5th Cir. 2007), cert. denied, 2008 WL 2484735 (June 23,
2008) (No. 06-1381); see also United States v. Irizarry, 128 S. Ct. 2198, 2202-04
(2008).
Accordingly, the judgment of the district court is AFFIRMED.
2