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

                                                FILED
                                                                September 30, 2009
                               No. 08-41122
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JAMES TERRELL JOHNSON, also known as James Johnson, also known as
James Terral Johnson, also known as James T Johnson, also known as Louis
Burris, also known as Orlando Hicks,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 4:05-CR-237-1


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
      James Terrell Johnson appeals from his sentencing on his conviction for
being a convicted felon in possession of a firearm. We previously remanded
Johnson’s case for resentencing because he was erroneously sentenced as an
armed career criminal. See United States v. Johnson, 286 F. App’x 155, 158 (5th
Cir. 2008).


      *
      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should not be published and is not precedent except under the limited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. 08-41122

      Johnson contends that the district court erred by adjusting his offense
level pursuant to U.S.S.G. § 2K2.1(b)(6) because he possessed his firearm in
conjunction with another felony, namely, possession of marijuana and
methamphetamine. The Government contends that this issue is beyond the
scope of our previous mandate.
      Johnson objected to his sentencing under the Armed Career Criminal Act
(ACCA) guideline before his first sentencing proceeding and did not object to the
adjustment for possession of a firearm in conjunction with another felony.
Johnson could have anticipated that either the district court or this court would
agree with his position on the ACCA and revert to a sentence based on § 2K2.1,
the felon in possession guideline. Johnson could have raised his objection to the
adjustment he now challenges in conjunction with his first sentencing
proceeding and obtained a favorable or unfavorable ruling on it. He could have
preserved the issue for appeal in the event of an unfavorable ruling on it and
this court could have addressed the issue in Johnson’s first appeal. Johnson had
sufficient incentive to raise the issue in his prior proceedings. See United States
v. Lee, 358 F.3d 315, 323 (5th Cir. 2004). None of the exceptions to the mandate
rule apply to Johnson’s case. See United States v. Matthews, 312 F.3d 652, 657
(5th Cir. 2002). Johnson’s challenge to the adjustment is outside the scope of our
prior mandate, and Johnson has not shown that any exceptions to the mandate
rule are applicable. See United States v. Griffith, 522 F.3d 607, 609-10 (5th Cir.),
cert. denied, 129 S. Ct. 211 (2008).
      Johnson contends that his sentence was unreasonable because the district
court gave undue deference to the guideline sentencing range and failed to
consider mitigating factors.     He acknowledges that sentences within the
guideline sentencing range are presumptively reasonable but argues that the
objectives of sentencing would have been served in his case with a lower
sentence.



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                                     No. 08-41122

      Following United States v. Booker, 543 U.S. 220, 261-63 (2005), sentences
are reviewed for “reasonableness.” United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005). Under the now-discretionary guidelines scheme, the sentencing
court has a duty to consider the factors of 18 U.S.C. § 3553(a) and to correctly
determine the applicable guidelines range. Id. at 518-19. Pursuant to Gall v.
United States, 128 S. Ct. 586, 596-97 (2007), this court must determine whether
the sentence imposed is procedurally sound, including whether the calculation
of the advisory guidelines range is correct, and whether the sentence imposed is
substantively reasonable. Review is for abuse of discretion. Id. at 597.
      Failure to consider the § 3553(a) factors is a question of procedural error.
Gall, 128 S. Ct. at 597. The district court in Johnson’s case explicitly stated that
the 93-month sentence was appropriate in light of Johnson’s criminal history
shortly after reviewing that criminal history. Section 3553(a) lists as factors
“the history and characteristics of the defendant,” § 3553(a)(1), the need for the
sentence “to promote respect for the law,” “to afford adequate deterrence to
criminal conduct,” and “to protect the public from further crimes of the
defendant.” § 3353(a)(2)(A),(B),(C). The district court thus considered factors
other than the guideline sentencing range.
      “[A]   sentence   within   a    properly   calculated   Guideline   range   is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see Rita v. United States, 551 U.S. 338, 347 (2007) (“[A] court of appeals
may apply a presumption of reasonableness to a district court sentence that
reflects a proper application of the Sentencing Guidelines.”). Johnson’s sentence
was presumptively reasonable and the district court arrived at that sentence by
considering factors listed in § 3553(a). Johnson does not indicate how sentencing
objectives would be served by a lower sentence other than to say that they would
be. Johnson has failed to rebut the presumption of reasonableness. See Alonzo,
435 F.3d at 554.
      AFFIRMED.

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