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

                                                FILED
                                                                February 26, 2009
                                No. 08-10178
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JASON LEE JOHNSTON

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:07-CR-130-1


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Jason Lee Johnston pleaded guilty to possession of a firearm by a felon
and was convicted by a jury of attempted first degree murder of a federal officer
and carrying and using a firearm in furtherance of a crime of violence. He was
sentenced to 120 months of imprisonment, 240 months of imprisonment, and life
imprisonment, respectively, to be served consecutively for an aggregate term of
life imprisonment.



      *
      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should not be published and is not precedent except under the limited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. 08-10178

      Johnston argues that the district court abused its discretion in upwardly
departing from the guidelines sentence pursuant to U.S.S.G. § 4A1.3 based on
an inadequate criminal history category because the district court did not follow
the proper procedures for doing so. He further contends that the district court
improperly took into account dismissed counts when it sentenced him because
such consideration “eviscerates the plea bargain.” He asserts that a person who
pleads guilty is entitled to expect a guidelines sentence.
      These arguments and the facts underlying them differ completely from the
facts contained in the record. The district court explicitly imposed an upward
departure pursuant to U.S.S.G. § 5K2.0(a)(3), rather than § 4A1.3, as Johnston
asserts. Additionally, neither the district court’s stated reasons for its sentence
nor anything contained in the record indicate that the district court took
dismissed counts into consideration when it sentenced Johnston. Furthermore,
there was no plea bargain in this case and Johnston received a within-guidelines
sentence for the only charge to which he pleaded guilty. Because Johnston’s
attorney-briefed arguments concerning the district court’s upward departure do
not address either the district court’s stated reasons for the departure or the law
underlying those reasons, he has abandoned any challenge to the district court’s
upward departure. See Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999);
Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
      Johnston also asserts that the district court failed to comply with 18
U.S.C. § 3553(c) in explaining its reasons for imposing an upward departure.
However, Johnston does not show how the district court failed to provide
specific reasons as required under § 3553(c), and thus has not demonstrated
the district court abused its discretion.
      Additionally Johnston asserts that his life sentence was
unconstitutionally excessive. However, when compared with the benchmark
established in Rummel v. Estelle, 445 U.S. 263 (1980), Johnston’s aggregate
life sentence for possession of a firearm by a felon, attempted first degree

                                        2
                                 No. 08-10178

murder of a federal officer, and carrying and using a firearm in furtherance of
a crime of violence was not grossly disproportionate. See Rummel, 445 U.S.
at 265-66, 284-85. Accordingly, the district court did not plainly err in
imposing Johnston’s life sentence. See United States v. Baker, 538 F.3d 324,
332 (5th Cir. 2008), cert. denied, 2009 WL 56591 (Jan. 12, 2009) (No.
08-7559).
      AFFIRMED.




                                        3
