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

                                                                            FILED
                                                                          October 2, 2007

                                     No. 06-31228                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

EUGENE MATTHEW WARE, also known as Luke, also known as Lew

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                          USDC No. 5:03-CR-50043-ALL


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
       Eugene Matthew Ware (Ware) appeals his 170 month sentence for
distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1).1 Ware contends
that his sentence is unreasonable because the district court failed to take his
diminished mental capacity into account. He argues that (1) his mother’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
          We previously vacated Ware’s sentence, holding that sentencing him under
mandatory, rather than advisory, sentencing guidelines was not harmless error. See United
States v. Ware, 182 F. App’x 299 (5th Cir. 2006).
                                        No. 06-31228

testimony was the only evidence regarding his mental state when he committed
his offense and (2) the district court mistakenly believed that a downward
departure based on diminished capacity required a finding of incompetence.
Ware does not challenge the correctness of the district court’s Guideline
calculations. Because Ware has failed to demonstrate that the district court’s
imposition of a guideline sentence was unreasonable, we AFFIRM.
       We review a district court’s interpretation and application of the
sentencing guidelines de novo and factual findings for clear error. United States
v. Villanueva, 408 F.3d 193, 202 & 203 n.9 (5th Cir. 2005). We lack jurisdiction
to address whether the district court erred by denying Ware a downward
departure based on his mental condition, pursuant to U.S.S.G. § 5K2.13 policy
statement. See United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007),
petition for cert. filed, (U.S. May 21, 2007) (No. 06-11834). Instead, we review “to
determine whether the district court’s imposition of a guideline sentence instead
of a non-guideline sentence was reasonable.” Id. Ware’s sentence within the
Guidelines sentencing range is presumptively reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). This presumption of reasonableness
is rebutted “only where the sentence falls so far afoul of one of the standards in
[United States v.] Smith as to constitute a clear error in the court’s exercise of
its broad sentencing discretion.” Nikonova, 480 F.3d at 376 (discussing United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006)).2
       We find no fault in the district court’s decision not to give additional
weight to Ware’s mental condition. The Forensic Psychologist’s report indicated
that Ware denied experiencing any symptoms of mental illness on or around the



       2
           “A non-Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error
of judgment in balancing the sentencing factors.” Smith 440 F.3d at 708.

                                               2
                                  No. 06-31228

date of his offense, was aware of the events, and could control his impulses.
Further, both the police reports and Ware’s own recollections failed to indicate
that he experienced any significant symptoms of mental illness around the time
of his offense. By finding that the evidence showed no link between Ware’s
mental condition and his offense, the district court provided a sufficient
explanation for rejecting Ware’s request for a lower sentence. See Rita v. United
States, 127 S. Ct. 2456, 2468 (2007). Thus, Ware has failed to demonstrate that
the district court’s imposition of a guideline sentence was unreasonable. Finally,
Ware’s contention that the district court misunderstood the relevant issue about
his mental health is without a factual basis. For the foregoing reasons, we affirm
the district court’s sentence.
      AFFIRMED.




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