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

                                                                            FILED
                                                                         February 22, 2008
                                     No. 07-30458
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

MICHAEL MARTIN

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:98-CR-260-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Michael Martin appeals the 24-month sentence he received upon
revocation of his supervised release.             He contends that the sentence is
unreasonable because it exceeds the recommended guidelines range without
legally sufficient reasons and because the district court failed to account for his
efforts to become a productive member of society while on supervised release.
Martin also suggests that his revocation sentence was incommensurate with his
violations of his supervised release conditions, and thus unreasonable.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30458
      Because Martin raises these arguments for the first time on appeal, review
is for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007) (finding that “a defendant’s failure to object at sentencing to the
reasonableness of his sentence triggers plain error review”). We “may correct
the sentencing determination only if (1) there is error (and in light of Booker, an
‘unreasonable sentence’ equates to a finding of error); (2) it is plain; and (3) it
affects substantial rights.” Id. at 392. The decision to correct the forfeited error
is left to the discretion of the appeals court, and should be exercised only if the
error “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (alteration in original) (internal quotation marks omitted).
      The sentence imposed, though in excess of the recommended guidelines
range, was within the statutory maximum. See 18 U.S.C. § 3583(e)(3) (providing
statutory maximum of 24 months). When sentencing outside the guidelines
range, the district court must give consideration to the sentencing factors
provided in 18 U.S.C. § 3553(a) in order to justify its departure from the
guidelines. See United States v. Smith 440 F.3d 704, 707-08 (5th Cir. 2006). A
non-guidelines sentence is unreasonable if 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 sentencing factors.” Id. at 709. We also note that “[t]he sentencing
judge is in a superior position to find facts and judge their import under §
3553(a) in the individual case.” Gall v. United States, ___ U.S. ___, 128 S. Ct.
586, 597 (2007).
      The district court gave proper consideration to the factors found in §
3553(a), including the nature of Martin’s offenses, his history and personal
characteristics, the need for the sentence imposed to afford adequate deterrence
to Martin, the need for correctional treatment (in this case drug rehabilitation
for Martin), and the need to promote respect for the law and protect the public
from further crimes.      Relying on these considerations, the district court

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concluded that sentencing Martin to the statutory maximum was appropriate
under the circumstances. The district court did not omit a necessary factor or
give weight to an improper factor.       Nor does the district court’s sentence
represent a clear error in judgment in balancing the factors.
      The district court did not err in its application of the § 3553(a) factors, and
therefore Martin’s sentence was reasonable. Martin has not demonstrated that
the district court committed error, plain or otherwise, in its determination of his
sentence. Therefore, we AFFIRM the sentence imposed by the district court.




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