     Case: 09-30918     Document: 00511158128          Page: 1    Date Filed: 06/29/2010




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

                                                 FILED
                                                                            June 29, 2010
                                     No. 09-30918
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MERLIN DESPEAUX,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-CR-141-3


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Merlin Despeaux appeals from the 262-month sentence imposed following
his guilty plea conviction for conspiracy to possess with intent to distribute 500
grams or more of a mixture and substance containing a detectable amount of
methamphetamine.
        Despeaux argues that he did not knowingly and voluntarily waive his right
to appeal his sentence and thus the district court erred in denying his motion to
withdraw the appeal waiver. If allowed to proceed with his appeal, he argues

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30918   Document: 00511158128 Page: 2        Date Filed: 06/29/2010
                                No. 09-30918

that the district court abused its discretion in denying his motion for a
downward departure or variance. The Government counters that Despeaux’s
challenge to his sentence is barred by the waiver provision contained in his plea
agreement providing, inter alia, that Despeaux waives his right to directly
appeal his sentence unless it exceeds the statutory maximum. We pretermit
discussion of the waiver issue, which does not affect our jurisdiction, because
Despeaux is not entitled to relief on the merits. See United States v. Story, 439
F.3d 226, 230-31 (5th Cir. 2006).
      We are without jurisdiction to consider Despeaux’s argument that the
district court erred in denying his motion for a downward departure as there is
no indication in the record that the district court was under the mistaken
impression that it could not depart. See United States v. Hernandez, 457 F.3d
416, 424 (5th Cir. 2006).   Nevertheless, we have jurisdiction to review the
district court’s decision to impose a sentence within the guidelines range. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      A sentence imposed within a properly-calculated guidelines range is
entitled to a presumption of reasonableness. See United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006). The district court imposed a sentence at the
bottom of the properly-calculated guidelines range after considering the 18
U.S.C. § 3553(a) factors. Despeaux has failed to show that the sentence is
unreasonable. The sentence is AFFIRMED.




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