     Case: 09-30498   Document: 00511031379    Page: 1   Date Filed: 02/19/2010




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

                                                  FILED
                                                                February 19, 2010
                                 No. 09-30498
                               Summary Calendar              Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JONATHAN TOMPKINS,

                                           Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CR-258-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Jonathan Tompkins pleaded guilty to assaulting his cellmate and thereby
causing him serious bodily injury. See 18 U.S.C. § 113(a)(6). Tompkins claims
that his 96-month sentence, which was at the high end of the properly calculated
guidelines range, is substantively unreasonable and that he should have been
sentenced below or at the low end of the guidelines range. Tompkins asserts
that the district court did not apply the 18 U.S.C. § 3553(a) factors properly in



        *
      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should not be published and is not precedent except under the limited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.
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                                 No. 09-30498

that (1) it failed to consider what he deems to be his minimal role in the offense
and (2) it created an unwarranted disparity between his sentence and that of his
codefendant, who joined Tompkins in the assault.
      A defendant whose motion for a downward departure has been overruled
may argue on appeal 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.), cert. denied,
128 S. Ct. 163 (2007). Reasonableness review is bifurcated; if a review of the
sentence for procedural error reveals none, the appellate court then determines
whether the sentence is substantively reasonable. Gall v. United States, 552
U.S. 38, 51 (2007). If error has been preserved, an appellate court reviewing for
reasonableness “merely asks whether the trial court abused its discretion.” Rita
v. United States, 551 U.S. 338, 351 (2007). Given that Tompkins disclaims
procedural error, we need only consider “the substantive reasonableness of [his]
sentence.” Gall, 552 U.S. at 51. Substantive reasonableness is determined in
light of the § 3553(a) sentencing factors. Id. at 49-50.
      Although he argued in the district court that he played but a minimal role
in the assault and therefore merited a sentence below or at the low end of the
guidelines range, Tompkins did not, when given the chance, specifically object
to the sentence actually imposed. Consequently, there may be some question
whether he is entitled to review for abuse of discretion or merely for plain error.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). However, as Tompkins is unable to show either
abuse of discretion or plain error, we need not decide which standard of review
applies.
      While Tompkins testified that he did not administer the permanent
injuries that his cellmate suffered in the assault, it is clear that Tompkins failed
to persuade the district court that this was so and that the PSR’s statement to
the contrary was incorrect. A sentencing court may rely on information in the

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                                  No. 09-30498

PSR in making factual determinations about a sentence unless the defendant
shows, by credible rebuttal evidence, that the PSR is untrue or inaccurate.
United States v. Ford, 558 F.3d 371, 376-77 (5th Cir. 2009). Although it made
no explicit credibility determinations, when the district court adopted the PSR
over Tompkins’s objections it implicitly rejected Tompkins’s testimony that he
played only a small part in inflicting the permanent injuries suffered by his
cellmate. The district court was not required to accept Tompkins’s self-serving
declarations, made with the purpose of reducing his sentence, about the
circumstances of his crime. See United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989).
      Tompkins’s parity argument is equally unavailing. In considering an
appropriate sentence, the district court must account for “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” § 3553(a)(6). But Tompkins and his
codefendant were not similarly situated. Tompkins is a career offender; the
codefendant is not. Cf.United States v. Duhon, 440 F.3d 711, 721 (5th Cir. 2006).
      Being within the properly calculated guidelines range, Tompkins’s
sentence is entitled to a presumption of reasonableness. See Rita, 551 U.S. at
347; see also United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The
district court, moreover, gave extensive consideration to Tompkins’s argument
for a sentence at the low end of or below the guidelines range but determined
that the § 3553(a) factors and the record before it counseled in favor of a
sentence at the high end of that range. And even if we were to agree with
Tompkins that the sentence that he proposed was a more reasonable one, that
would be insufficient justification for not deferring to the district court’s decision
to impose the sentence that it selected. See Gall, 552 U.S. at 51.
      AFFIRMED.




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