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

                                                FILED
                                                                  March 2, 2009
                                No. 08-60103
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JERRY WAYNE RAMEY

                                            Defendant-Appellant


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                            USDC No. 4:07-CR-8-1


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Jerry Wayne Ramey appeals the 240-month sentence imposed following
his conviction for possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B).
Ramey argues that the district court erred in relying on his 2006 federal
Northern District of Alabama conviction (Alabama conviction) to place him in
criminal history category II.        He further argues that his sentence
is unreasonable because the Sentencing Guidelines called for a range below the



      *
      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should not be published and is not precedent except under the limited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. 08-60103

10-year statutory minimum sentence and because the district court considered
his Alabama conviction in imposing an upward variance from the Guidelines.
      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. We review sentences both
“inside [and] outside the Guideline range” for abuse of discretion. Id. at 597.
      We need not decide whether the district court erred in including three
criminal history points for Ramey’s prior Alabama sentence because any error
was harmless. Ramey argues that but for the inclusion of the three criminal
history points, he would have had a criminal history category of I, rather than
II, and a guidelines range of imprisonment of 63 to 78 months rather than 70 to
87 months. Ramey conceded in the district court, and he concedes on appeal,
that the mandatory minimum sentence under § 2252(b)(2) was 10 years of
imprisonment. See § 5G1.1(b). Because any error in calculating the criminal
history was harmless, Ramey’s challenge to the criminal history calculation is
unavailing. See United States v. Posada-Rios, 158 F.3d 832, 881 (5th Cir. 1998);
see also United States v. Mankins, 135 F.3d 946, 950 (5th Cir. 1998).
      The sentence imposed by the court was a “‘non-Guideline sentence’” or
“‘variance’” from the applicable guidelines range. See United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008). The record reflects that the district court
properly considered the 18 U.S.C. § 3553(a) factors, the arguments of counsel,
letters submitted in support of Ramey, and the advisory Guidelines, but the
district court ultimately accepted the Government’s recommendation that
Ramey receive a 20-year sentence, the statutory maximum. As Ramey argues,
the district court’s comments reflect that it did consider the Alabama offense as
a factor in imposing the upward variance. The district court was not precluded,
however, from imposing a departure or variance based on factors that the
Guidelines had already taken it into account. See Brantley, 537 F.3d at 350;

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                                  No. 08-60103

United States v. Williams, 517 F.3d 801, 810-11 & n.55 (5th Cir. 2008). The
district court’s variance from the sentencing guidelines range was not an abuse
of discretion. See Gall, 128 S. Ct. at 597.
      AFFIRMED.




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