     Case: 08-51018     Document: 00511054122          Page: 1    Date Filed: 03/17/2010




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

                                                  FILED
                                                                           March 17, 2010
                                     No. 08-51018
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TOMMY DELANDO BURNS, also known as Twisted Black,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:06-CR-89-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Tommy Delando Burns appeals the sentence imposed by the district court
on remand for resentencing following the Supreme Court’s decision in
Kimbrough v. United States, 552 U.S. 85 (2007), and the amendments to the
crack cocaine Sentencing Guidelines. See United States v. Burns, 526 F.3d 852,
855 (5th Cir. 2008). On remand, the district court reduced Burns’s base offense
level by two pursuant to the amendments to the crack cocaine Sentencing
Guidelines, but it declined to depart downward from the revised guidelines

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-51018    Document: 00511054122 Page: 2        Date Filed: 03/17/2010
                                 No. 08-51018

range based upon Burns’s argument that his sentence was greater than the
sentences imposed on his co-defendants.
      On appeal, Burns argues that the sentence imposed was unreasonable
because it was greater than necessary to achieve the goals of 18 U.S.C. § 3553(a).
Specifically, he argues that the district court abused its discretion in sentencing
him to a far greater sentence than those imposed on his co-defendants. He
asserts that, although his criminal history may have been more serious than
other co-defendants, it was miscalculated because the district court relied on
unreliable trial testimony to calculate his criminal history score.
      We do not consider any arguments by Burns concerning the reliability of
trial testimony or the calculation of his criminal history score because those
issues are outside the scope of our remand to the district court. See Eason v.
Thaler, 73 F.3d 1322, 1329 (5th Cir. 1996) (per curiam). Moreover, Burns has
not shown that his sentence was unreasonable due to an unwarranted disparity
between his sentence and his co-defendants’ sentences. See § 3553(a)(6); United
States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006). Thus, Burns has not shown
that the district court erred in balancing the sentencing factors or that the
guidelines sentence imposed was an abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir.) (per curiam), cert. denied, 129 S. Ct. 328 (2008). Moreover,
Burns has not rebutted the presumption of reasonableness that applies to his
guidelines sentence. See Campos-Maldonado, 531 F.3d at 338. Accordingly, the
judgment of the district court is AFFIRMED.




                                        2
