           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                F I L E D
                                                                              September 18, 2007
                                       No. 05-40611
                                                                            Charles R. Fulbruge III
                                                                                    Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

CARL LEE JACKSON, JR., also known as Patches

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 4:04-CR-116-6


Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       Having pleaded guilty to conspiracy to manufacture, distribute, or possess
cocaine with intent to distribute, in violation of 21 U.S.C. § 846, Carl Lee
Jackson was sentenced, inter alia, to 48-months imprisonment, to run
consecutive to his state sentences for related conduct. Jackson challenges his
sentence as being unreasonable, contending Sentencing Guidelines § 5G1.3(b)




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40611

(sentencing adjustment for related state sentences) should have been applied in
the light of his sentences for related state offenses. AFFIRMED.
                                        I.
      In his plea agreement, Jackson waived his right to appeal, with the
exception of, inter alia, any upward departure from the sentencing-guidelines
range. The district court considered the time Jackson had been imprisoned for
state offenses related to the instant federal conviction: a completed 68-month
sentence and 15 months of an undischarged 48-month sentence on eight state
convictions. Jackson’s offense level of 27 and criminal history category of II
yielded a guidelines range of 78 to 97 months’ imprisonment. He was sentenced,
inter alia, to 48 months, to be served consecutively to any state sentence he had
served, or was serving.
                                        II.
      As a threshold matter, the Government does not contend that this appeal
is barred by Jackson’s appeal waiver. Therefore, his appeal is not barred.
      Jackson contends the district court should have applied § 5G1.3(b), as
requested at sentencing, which would require his sentence to run concurrently
with his state sentence and be adjusted for time already served for related state
offenses. Along that line, he maintains the district court’s not doing so resulted
in an upward departure and an unreasonable sentence, considering his state and
federal sentences could total far in excess of the top of his sentencing-guidelines
range (97 months).
      Jackson does not contend application of § 5G1.3(b) is mandatory, and this
court has not so held. United States v. Bell, 46 F.3d 442, 446 (5th Cir. 1995); see
United States v. Candia, 454 F.3d 468, 474-75 (5th Cir. 2006) (considering


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U.S.S.G. § 5G1.3(c)).    Nor does Jackson claim his guidelines range was
improperly calculated.
      The district court’s application of the guidelines is reviewed de novo; its
findings of fact, for clear error. E.g., United States v. Smith, 440 F.3d 704, 706
(5th Cir. 2006). Ultimate sentences are reviewed for reasonableness. E.g.,
United States v. Booker, 543 U.S. 220, 261-62 (2005); United States v. Mares, 402
F.3d 511, 520 (5th Cir. 2005). This reasonableness inquiry is guided by the
factors in 18 U.S.C. § 3553(a); the sentence is not required to fall within the
guidelines range. Mares, 402 F.3d at 519. “[W]hen the judge elects to give a
non-Guideline sentence, she should carefully articulate the reasons she
concludes that the sentence she has selected is appropriate”. Id.
      The district court considered § 5G1.3(b) and noted that the 48-month
consecutive sentence exceeded the guidelines range. It stated reasons for
imposing the sentence, including Jackson’s long history as a crack dealer and the
need for an adequate deterrent to future criminal conduct. The sentence was
reasonable.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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