     Case: 09-30404     Document: 00511052701          Page: 1    Date Filed: 03/16/2010




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

                                                  FILED
                                                                           March 16, 2010
                                     No. 09-30404
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DEVAN DONTAY HARRIS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CR-215-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Devan Dontay Harris appeals from the sentence imposed for his guilty
plea conviction for assault of a government employee resulting in serious bodily
injury. Harris argues that: (1) the district court failed to consider all of the 18
U.S.C. § 3553(a) factors and imposed an unreasonable sentence; and (2) the
district court did not adequately account for the victim’s conduct and grant the
U.S.S.G. § 5K2.10 downward departure. Because the district court was not
under the mistaken impression that it could not depart, this court is without

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30404   Document: 00511052701 Page: 2       Date Filed: 03/16/2010
                                No. 09-30404

jurisdiction to consider Harris’s argument that the district court erred in
denying him a downward departure. See United States v. Hernandez, 457 F.3d
416, 424 (5th Cir. 2006). However, we will view his arguments on appeal in
support of his downward departure as asserting that his sentence was
unreasonable because the district court “failed adequately to consider factors
counseling in favor of a downward departure.” United States v. Nikonova, 480
F.3d 371, 375 (5th Cir. 2007). Given that Harris does not allege procedural
error, we need only consider “the substantive reasonableness of [his] sentence.”
Gall v. United States, 552 U.S. 38, 51 (2007).
      Harris raises on appeal a number of factors supporting his argument that
the imposed sentence should have been lower. However, all of those factors were
raised before the district court, which explicitly considered all of the relevant
§ 3553(a) factors before imposing sentence. Harris has failed to overcome the
presumption of reasonableness afforded to his within-guidelines sentence. See
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      The district court’s judgment is AFFIRMED.




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