     Case: 12-10838       Document: 00512248742         Page: 1     Date Filed: 05/21/2013




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

                                                                            FILED
                                                                           May 21, 2013
                                     No. 12-10838
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BARRY ELTON BENTLE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:12-CR-25-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Barry Elton Bentle pleaded guilty to one count of
possession with intent to distribute methamphetamine. The district court
sentenced Bentle at the bottom of the advisory guidelines range to 210 months
of imprisonment and three years of supervised release. Bentle contends that the
district court abused its discretion in denying a downward departure or variance
because improper statements were used to enhance his sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10838     Document: 00512248742     Page: 2   Date Filed: 05/21/2013

                                  No. 12-10838

      Bentle raises the same points on appeal that he raised in the district court
at sentencing and in his sentencing memorandum, yet Bentle had failed to object
to the reasonableness of his sentence after it was imposed. Thus, review is
arguably for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007); but see United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996).
We need not determine which standard of review is appropriate, however,
because Bentle’s claims fail even under the abuse-of-discretion standard. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      By pleading guilty, Bentle waived all nonjurisdictional defects in the
instant proceedings, including a challenge to his post-arrest statements. See
United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); see also Rogers v.
Maggio, 714 F.2d 35, 38 (5th Cir. 1983). Bentle does not claim that the district
court denied his request for a downward departure because the court
erroneously believed that it had no authority to depart. We do not, therefore,
have jurisdiction to review Bentle’s insistance that the district court erred when
it denied his request for a downward departure. See United States v. Hernandez,
457 F.3d at 416, 424 & n.5 (5th Cir. 2006). Accordingly, his appeal is dismissed
in part for lack of jurisdiction. See United States v. Martinez, 263 F.3d 436, 440
(5th Cir. 2001).
      We do, however, have jurisdiction to consider a challenge to the sentencing
court’s denial of a variance based on 18 U.S.C. § 3553(a) grounds. See United
States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007). After United States v.
Booker, 543 U.S. 220, 261-63 (2005), appellate courts ordinarily will review
sentences for reasonableness. United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005). Bentle does not claim, though, that his sentence is unreasonable or
cite to any of the § 3553(a) factors in support of a lower sentence. He thus fails
to rebut the presumption that his within-guideline sentence was reasonable. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). As such, he has failed



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                                 No. 12-10838

to show that the district court committed error, plain or otherwise, in denying
his motion for a variance. See id.
      The district court’s judgment is AFFIRMED in part, and Bentle’s appeal
is DISMISSED in part for lack of jurisdiction.




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