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

                                                FILED
                                                                 April 14, 2009
                                No. 08-10643
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ALLEN CARTER

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:07-CR-187-1


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Allen Carter appeals the total 420-month sentence imposed following his
guilty plea conviction for possession with intent to distribute 50 grams or more
of cocaine base, possession with intent to distribute heroin, maintaining a drug-
involved premises, possession of a firearm in furtherance of a drug trafficking
crime, and being a felon in possession of a firearm. Carter argues that the
district court imposed an unreasonable sentence because it failed to consider the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                     No. 08-10643

impact of his age for purposes of 18 U.S.C. § 3553(a). He also contends that the
sentence is unreasonable because in denying the Government’s motion for a
downward departure based on substantial assistance, the court failed to accord
substantial weight to the Government’s evaluation of his assistance and the
court failed to take into account the nature and circumstances of the offense. See
U.S.S.G. § 5K1.1, p.s.; § 3553(a).
      Pursuant to Gall v. United States, 128 S. Ct. 586, 596-97 (2007), this
court’s review of the substantive reasonableness of a sentence ordinarily is for
an abuse of discretion. As Carter essentially concedes, however, his arguments
challenging the reasonableness of his sentence, raised for the first time on
appeal, are reviewable only for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007)). This court has no jurisdiction to review a refusal
to depart downward unless the refusal was based on the district court’s mistaken
conclusion that it lacked the authority to depart, a circumstance not present
here. See United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). We
retain jurisdiction to review “whether the district court’s imposition of a
guideline sentence instead of a non-guideline sentence was reasonable.” United
States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S. Ct. 163
(2007).
      When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the § 3553(a)
factors, this court gives “great deference to that sentence and will infer that the
judge has considered all the factors for a fair sentence set forth in the Guidelines
in light of the sentencing considerations set out in § 3553(a).” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.) (internal quotation marks and
citation omitted), cert. denied, 129 S. Ct. 328 (2008). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” Id. (citing United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); Rita v. United States, 127 S. Ct. 2456, 2462 (2007)).

                                          2
                                  No. 08-10643

      In imposing the within-guidelines sentence, the district court stated that
it had considered the § 3553(a) factors and expressly considered Carter’s
cooperation with the Government. Although Carter argues that the district
court failed to consider that offenders at his age of 44 years have a low risk of
recidivism, 12.7 per cent, he has not shown that the statistics he relies upon
accurately reflect whether he posed a risk of recidivism, particularly in light of
his extensive criminal history. See United States v. Rodriguez, 553 F.3d 380, 397
(5th Cir. 2008). Moreover, the results of the study he cites reveal that while the
total recidivism rate for offenders aged 41 to 50 was 12.7 per cent, the recidivism
rate for that age range for offenders in criminal history category VI, Carter’s
criminal history category, was 41.3 percent.          United States Sentencing
Commission, Measuring Recidivism: The Criminal History Computations of the
Federal Sentencing Guidelines, at 28, Exh. 9 (May 2004), available at
http://www.ussc.gov/publicat/Recidivism_General.pdf. Carter has not overcome
the presumption that his within-guidelines sentence is reasonable, see Alonzo,
435 F.3d at 554, or shown that the district court abused its discretion under
Gall, 128 S. Ct. at 596-97. Carter has shown no error, plain or otherwise. See
Peltier, 505 F.3d at 391-92.
      The judgment of the district court is AFFIRMED.




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