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

                                                 FILED
                                                                            July 29, 2009
                                     No. 08-51140
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RANDALL EARL BERKEFELT,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 1:08-CR-177-ALL


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Randall Earl Berkefelt appeals the sentence imposed
following his guilty plea conviction for possession of a firearm by a person who
has been convicted of a crime punishable by a term of imprisonment exceeding
one year. The district court sentenced Berkefelt to 46 months of imprisonment
and three years of supervised release, the lowest sentence within the advisory
guidelines sentence range.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51140

      Berkefelt   argues   that   the   46-month    sentence   is   substantively
unreasonable because it was greater than necessary to comply with the
objectives set forth in 18 U.S.C. § 3553(a). He contends that the guidelines
range of 46 to 57 months of imprisonment overstated the seriousness of his
criminal history given that his 1990 drug conviction was only included in the
guidelines calculation because he remained on bond for three years during the
pendency of his appeal. Berkefelt asserts that the district court abused its
discretion by denying his request for a downward variance given his history and
circumstances. He requests we vacate his sentence and remand the case for
resentencing.
      The record reflects that the district court considered Berkefelt’s argument
concerning the age of his prior drug conviction and his background.         After
balancing the sentencing factors, the district court determined that a sentence
within the guidelines range was appropriate.         “The decision to impose a
within-the-guidelines sentence, along with the court's statement that no reason
justified an outside-the-guidelines sentence, indicates the court thought this a
typical, mine run case in which the guidelines provide the appropriate sentence
in terms of 18 U.S.C. § 3553(a).” United States v. Newson, 515 F.3d 374, 379 (5th
Cir.), cert. denied, 128 S. Ct. 2522 (2008).     Considering the totality of the
circumstances, as we must, see Gall v. United States, 128 S. Ct. 586, 597 (2007),
Berkefelt has not shown that the sentence was unreasonable. See Rita v. United
States, 127 S. Ct. 2456, 2470 (2007) (holding that a sentence within the advisory
guidelines range was reasonable despite mitigating factors). Accordingly, the
judgment of the district court is AFFIRMED.




                                        2
