United States v. Bunn , 271 F. App'x 408 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2008
No. 07-30446
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSEPH BUNN, also know as JoJo
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-152-1
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Defendant Joseph Bunn challenges the 262-month sentence imposed
following his guilty-plea conviction for one count of knowingly and intentionally
distributing at least five grams of cocaine base. The sentence included an
enhancement based on the district court’s finding that Bunn was a career
offender under U.S.S.G. § 4B1.2 because he had at least two qualifying prior
felony convictions.
*
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should not be published and is not precedent except under the limited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. 07-30446
This court reviews questions of the interpretation of the Sentencing
Guidelines, such as § 4B1.1, as a question of law subject to de novo review.
United States v. Angeles-Mendoza, 407 F.3d 742, 746-47 (5th Cir. 2005); United
States v. Shano, 955 F.2d 291, 294 (5th Cir. 1992) (internal citations omitted).
Application of the Guidelines to the facts of a case are reviewed for clear error.
Id.
Bunn argues that the district court erred in finding that he was a career
offender under the Guidelines. Bunn concedes that he has a prior conviction in
Georgia for distributing drugs that counts as a prior felony conviction for
purposes of § 4B1.1. He contends, however, that the aggravated battery
conviction which was counted for purposes of § 4B1.1 should not have been used
because the underlying facts and circumstances of the incident did not make it
a crime of violence. However, the appropriate inquiry under U.S.S.G. § 4B1.2,
which defines “crime of violence” for purposes of § 4B1.1, focuses on the elements
of the crime, not the defendant’s actual conduct in committing the offense.
United States v. Garcia, 470 F.3d 1143, 1147 (5th Cir. 2006). Bunn’s argument
is without merit.
Bunn also argues that the district court erred in denying his motion for a
downward departure or variance. However, there is no indication in the record
that the district court believed that it lacked authority to grant a downward
adjustment or variance. Accordingly, this court lacks jurisdiction to review this
issue. See United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). When a
defendant’s motion for downward departure has been denied, he may still argue
on appeal that his sentence was unreasonable because the district court failed
to adequately consider factors counseling in favor of a downward departure. See
United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S. Ct.
163 (2007).
Bunn argues that his sentence was unreasonable because the district
court focused solely on his criminal history and gave insufficient weight to the
2
No. 07-30446
other factors set forth in 18 U.S.C. § 3553(a) and to mitigating factors such as his
mental and physical health problems. The record shows that the district court
did in fact consider Bunn’s health problems. As for whether the district court
properly considered the factors set forth in § 3553(a), Bunn, who received a
sentence within the suggested guidelines range, does not contend that the range
was improperly calculated. “[A] sentence within a properly calculated guideline
range is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Further, when a sentencing court exercises its discretion to
impose a sentence within a properly calculated guidelines range, this court
infers that the district court considered all of the factors required for a fair
sentence. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Bunn’s
arguments are without merit.
AFFIRMED.
3