     Case: 11-10190     Document: 00511707926         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011
                                     No. 11-10190
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESSIE KELLY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-140-1


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
PER CURIAM:*
        Jessie Kelly appeals the sentence of 420 months of imprisonment imposed
following his guilty plea conviction for possessing a firearm in furtherance of a
drug trafficking offense. See 18 U.S.C. § 924. The sentence was above the
advisory guidelines sentencing range of 262 to 327 months but below the
statutory maximum sentence of life imprisonment. We affirm.
        Appellate courts must review sentences for reasonableness in light of the
sentencing factors of 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 46,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10190    Document: 00511707926      Page: 2   Date Filed: 12/28/2011

                                  No. 11-10190

49-50 (2007). If error is preserved, as in the instant case, an appellate court
reviewing for reasonableness “merely asks whether the trial court abused its
discretion.” Rita v. United States, 551 U.S. 338, 351 (2007). The abuse of
discretion standard applies “whether the sentence imposed is inside or outside
the Guidelines range.” Gall, 552 U.S. at 51.
        We reject Kelly’s claim that the district court improperly considered
records pertaining to his past. “[A] sentencing judge [may] exercise a wide
discretion in the sources and types of evidence used to assist him in” selecting
a sentence. Pepper v. United States, 131 S. Ct. 1229, 1240 (2011) (internal
quotation marks and citation omitted); see also 18 U.S.C. § 3661. This discretion
is not to be curbed by limitations concerning “the source from which [sentencing
information] may come,” except as set forth by law Pepper, 131 S. Ct. at 1240
(internal quotation marks and citation omitted); see also U.S.S.G. § 6A1.3. We
decline Kelly’s invitation to “invent a blanket prohibition” concerning the
evidence that sentencing courts may consider. Pepper, 131 S. Ct. at 1241
(internal quotation marks and citation omitted).
        We reject also Kelly’s due process challenge based on an appearance of
bias.    Kelly does not assert that the district court was biased or even
presumptively biased against him; yet only actual bias or presumptive bias gives
rise to a due process violation. See Richardson v. Quarterman, 537 F.3d 466, 475
(5th Cir. 2008). Kelly has thus abandoned this claim by failing to offer any legal
support for it. See United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.
2009). Additionally, circuit precedent forecloses the claim that the district court
violated Kelly’s constitutional rights of confrontation and cross-examination by
considering exhibits. See United States v. Navarro, 169 F.3d 228, 236 (5th Cir.
1999). We find no merit in Kelly’s claim that the district court failed to provide
adequate reasons for the sentence. The district court made clear that it imposed
an upward variance due to the nature and circumstances of the offense as well
as Kelly’s history and characteristics and in order to reflect the seriousness of

                                        2
   Case: 11-10190   Document: 00511707926      Page: 3   Date Filed: 12/28/2011

                                 No. 11-10190

the offense, promote respect for the law, provide a just punishment, adequately
deter future criminal conduct, and protect the public from further crimes by
Kelly. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      If a sentencing court determines that a sentence within the initial advisory
range would be insufficient to serve the purposes of sentencing, it may impose
either of two types of sentence falling outside that range: a departure, which is
a sentence authorized by one or more provisions of the Guidelines, or a variance,
which is a sentence that finds no specific authorization in the Guidelines. See
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). As the district
court’s statement of reasons makes clear, Kelly’s was a variance sentence. As
a substantive matter, a sentence must be supported by the factors contained in
§ 3553(a). United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). A variance
“sentence unreasonably fails to reflect the [§ 3553(a)] factors where it (1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Id. at 708.
      We reject Kelly’s speculative assertion that the district court determined
that his traumatic childhood was not truly a mitigating factor and instead
supported a more onerous sentence. We find no record support for Kelly’s
contention that the district court improperly justified “increased punishment”
based on his need for mental-health counseling and on its availability in prison.
And we find no merit in Kelly’s assertion that the selected sentence presents a
clear error in the balancing of the § 3553(a) sentencing factors and that a
sentence of 327 months would have been reasonable. “The sentencing judge is
in a superior position to” determine whether the § 3553(a) factors support the
variance imposed. Gall, 552 U.S. at 51. The district court stated that it
sentenced Kelly as it did based on substantive considerations, including Kelly’s
characteristics and extensive criminal history starting at age 17, much of which
was not taken into account in determining his criminal history score. The fact

                                        3
   Case: 11-10190    Document: 00511707926      Page: 4    Date Filed: 12/28/2011

                                   No. 11-10190

that Kelly, or we, might “reasonably . . . conclude that a different sentence was
appropriate is [alone] insufficient to justify reversal of the district court.” Id.
      AFFIRMED.




                                         4
