     Case: 10-31227     Document: 00511514725          Page: 1    Date Filed: 06/21/2011




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

                                                 FILED
                                                                            June 21, 2011
                                     No. 10-31227
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KEVIN WHITTINGTON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CR-211-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Kevin Whittington appeals his 37-month sentence imposed following his
guilty plea conviction for possession with intent to distribute five grams or more
of cocaine base.      Whittington argues that his sentence was substantively
unreasonable because the district court denied his request for a downward
variance and imposed a guidelines sentence without considering his background
and the circumstances leading to the commission of the crime. He contends that
he showed that his 37-month sentence was greater than necessary to achieve the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 10-31227

purposes of 18 U.S.C. §3553(a). Whittington further asserts that the district
court’s rejection of the downward variance was incorrectly based on his abuse of
his position as a deputy sheriff because that factor was considered in the two-
level enhancement of his offense level pursuant to U.S.S.G. § 3B1.3.
      The appellate court considers the “substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 51 (2007) A sentence that falls within the applicable guidelines
range “is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006).
      The district court considered Whittington’s mitigating arguments and
acknowledged his expressions of remorse.           However, the district court
determined that it could not ignore that Whittington committed this offense
while employed as a deputy sheriff, a position which required him to maintain
law and order in the jail. The district court’s consideration of Whittington’s
abuse of a position of trust was valid, although it was a factor in determining his
offense level, because the district court was required to give consideration to all
§ 3553(a) factors, including the nature and circumstances of the offense.
§ 3553(a)(1); cf. United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008).
      The district court also recognized that Whittington’s family would
experience hardship in light of his incarceration, but pointed out that is a
common occurrence when individuals are incarcerated. It also rejected his
argument that it should rely on a 1-1 ratio of crack to powder in determining the
offense level. The district court clearly considered Whittington’s arguments for
a downward variance and the § 3553(a) factors in imposing a sentence at the
bottom of the sentencing guidelines range. See United States v. Gomez-Herrera,
523 F.3d 554, 565 (5th Cir. 2008).
      Whittington has failed to overcome the presumption of reasonableness
afforded his sentence. See Alonzo, 435 F.3d at 554. He has failed to show that



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                              No. 10-31227

the district court abused its discretion at sentencing.    The sentence is
AFFIRMED.




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