                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 30, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-30132
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SANTINO C. ELLIS, also known as
Santino Christopher Ellis,

                                    Defendant-Appellant.

                       --------------------

           Appeal from the United States District Court
               for the Western District of Louisiana
                     USDC No. 5:05-CR-50070-2

                       --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Santino Ellis appeals from a 96-month sentence on his guilty

plea conviction for possession of a firearm by a convicted felon.

Ellis argues that the 69-month upward departure was plainly

unreasonable based upon the district court’s consideration of a

prior arrest, employment and familial factors, and other criminal

conduct.   We need not decide whether Ellis’s sentence was a

guidelines or a non-guidelines sentence because, in either case,


     *
       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this opinion should not be published and is not precedent except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.
                             No. 06-30132
                                  -2-

his sentence was not plainly unreasonable.       See United States v.

Jones, 444 F.3d 430, 441 (5th Cir.), cert. denied, 126 S. Ct.

2958 (2006).

     The district court did err in considering the drive-by

shooting incident to the extent it was considered only as a prior

arrest.   See Jones, 444 F.3d at 434 and n. 6.     However, Ellis

cannot demonstrate that but for this error he would not have

received an upward departure.     See United States v. Mares, 402

F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

402 F.3d at 520.   The record reflects in both the sentencing

transcript and in the written statement of reasons that the

district court issued the upward departure based upon Ellis’s

extensive criminal history which was underrepresented by his

criminal history score.     See § 4A1.3.    The court articulated

Ellis’s misdemeanor convictions for illegally carrying a weapon,

five prior convictions for drug-related charges, lack of

employment history, and a pending felony charge as reasons for

its upward departure.

     With respect to the district court’s consideration of

employment and familial factors, the sentencing transcript and

statement of facts reflect that these factors were included as

part of the court’s consideration of the underrepresentation of

Ellis’s criminal history.    With respect to the court’s

consideration of other pending charges, Ellis cannot demonstrate
                             No. 06-30132
                                  -3-

plain error as the court is permitted to consider this factor as

a basis for upward departure pursuant to § 4A1.3(a)(2)(D).

     With respect to the extent of the upward departure, the

district court’s sentence was not unreasonable.     The district

court’s 96-month sentence was 69 months more than the top of the

advisory guidelines range but well below the 10-year statutory

maximum for the offense.     In light of the evidence before the

district court and the court’s articulation of its reasons for

protecting the public and deterring future criminal act, which

are consistent with 18 U.S.C. § 3553(a), the sentence is not

unreasonable.    U.S. v. Reinhart, 442 F.3d 857, 864 (5th Cir.),

petition for cert. filed (June 5, 2006) (no. 05-11431).

     Ellis argues that the district court erred in failing to

provide him notice of the court’s intent to depart upward from

the recommended guideline range.     Because Ellis failed to object

to this issue, we review the issue for plain error.     See Jones,

444 F.3d at 443.    Ellis cannot demonstrate plain error with

respect to this issue because he has not demonstrated that, with

adequate notice, he could have swayed the district court not to

depart upward.     See id.

     AFFIRMED.
