     Case: 09-10694     Document: 00511092885          Page: 1    Date Filed: 04/27/2010




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

                                                  FILED
                                                                            April 27, 2010
                                     No. 09-10694
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRAD MICHAEL EARDLEY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-48-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Brad Michael Eardley was convicted of being a felon in possession of a
firearm. See 18 U.S.C. § 922(g). After serving a 60-month sentence on that
conviction, Eardley was released to supervision, but he violated the conditions
of release. The district court revoked Eardley’s supervised release and sentenced
him to 18 months of imprisonment, which was within the advisory guideline
range of 12 to 18 months. See U.S. Sentencing Guidelines Manual § 7B1.4
(policy statement).      As recommended by the Guidelines, the district court

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10694     Document: 00511092885 Page: 2       Date Filed: 04/27/2010
                                  No. 09-10694

ordered that the 18-month revocation sentence run consecutively to Eardley’s
undischarged state sentence for possession of methamphetamine. Id. § 7B1.3(f)
(policy statement).    Eardley now challenges the consecutive nature of his
revocation sentence. He argues that the district court acted unreasonably in
choosing to run his revocation sentence consecutively to his state jail sentence
and in relying on the factors in 18 U.S.C. § 3553(a)(2)(A) in doing so.
      The factors in § 3553(a)(2)(A) are not excluded from 18 U.S.C. § 3584, the
statutory provision applicable to a district court’s decision whether to run a
sentence consecutively to or concurrently with another undischarged sentence.
See § 3584(b). Eardley’s reliance on § 3583(e) is misplaced. That provision
applies to the district court’s decisions whether to impose a revocation sentence
and the length of that sentence, not to whether the sentence should be
consecutive to an undischarged state sentence. See §§ 3583(e), 3584(a)-(b).
      The consecutive nature of Eardley’s revocation sentence is entitled to a
rebuttable presumption of reasonableness. See United States v. Lopez-Velasquez,
526 F.3d 804, 809 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008); United States v.
Candia, 454 F.3d 468, 471 (5th Cir. 2006). Eardley has not provided a factual
basis for his argument that he has rebutted that presumption by showing a
sentencing disparity. Nor has he shown that the district court’s reliance on
§ 3553(a)(2)(A) factors was impermissible or unreasonable. He also provides no
legal basis for his argument that the revocation sentence conflicts with the state
judgment of conviction because the latter must run concurrently with any other
sentence. Thus, Eardley has not rebutted the presumption of reasonableness.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, -- S.
Ct. --, 2010 WL 637943 (Mar. 22, 2010). Eardley’s sentence passes muster under
either the unreasonable or plainly unreasonable standard and was not imposed
in violation of law. See United States v. Hinson, 429 F.3d 114, 120 (5th Cir.
2005). The judgment of the district court is AFFIRMED.



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