     Case: 09-60791     Document: 00511170789          Page: 1    Date Filed: 07/13/2010




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

                                                 FILED
                                                                            July 13, 2010
                                     No. 09-60791
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERNESTO V. BELL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 2:09-CR-9-1


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
        Ernesto V. Bell, federal prisoner # 13214-045, appeals the 36-month
sentence imposed following revocation of the term of supervised release imposed
following his conviction in the Western District of Missouri for conspiracy to
distribute 50 grams or more of cocaine base. Bell argues that the sentence
imposed is unreasonable.
        This court has declined to decide the appropriate standard of review for a
sentence imposed upon revocation of supervised release in the wake of Booker.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60791    Document: 00511170789 Page: 2        Date Filed: 07/13/2010
                                 No. 09-60791

United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). There is no need
to do so in this case, as the 36-month sentence imposed in this case is neither
unreasonable nor plainly unreasonable.
      The term of imprisonment imposed by the district court in Bell’s case was
not in violation of law. See 21 U.S.C.§ 841(b)(1)(A)(iii); 18 U.S.C. §§ 3559(a)(1),
3583(e)(3). Although the sentence constitutes a substantial upward departure
from the advisory guidelines range, the sentence is not unreasonable or plainly
unreasonable. The record in this case reflects that the district court considered
the policy statements contained in the Guidelines and the 18 U.S.C. § 3553(a)
factors in fashioning the sentence and adequately explained the reason for the
sentence selected. See United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir.
1994); United States v. Neal, 212 F. App’x 328, 332 (5th Cir. 2007). Accordingly,
the judgment is AFFIRMED.




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