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

                                                                 FILED
                                                                August 26, 2008
                               No. 07-60772
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

MARCELL CORNELIUS MARTIN

                                          Defendant-Appellant


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 3:06-CR-212-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Marcell Cornelius Martin appeals his non-guidelines
sentence following his guilty plea conviction for possession of a firearm by a
felon. He contends that his sentence should be vacated as unreasonable because
(1) the district court’s upward variance was based on reasons that were already
accounted for under the Guidelines or that are not supported by the record; (2)
the district court ruled that an attempted murder cross-reference under the
Guidelines was inapplicable, but nevertheless took into account the facts

      *
      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should not be published and is not precedent except under the limited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. 07-60772

underlying the dispute over the cross-reference; (3) the district court imposed a
variance without first considering a departure under the Guidelines; and (4) the
district court failed to consider the need to avoid unwarranted sentence
disparities among similarly situated defendants.
      The government has moved for dismissal of the appeal or, alternatively,
summary affirmance, arguing that Martin’s appeal is barred by an appeal
waiver in his plea agreement. Martin counters that the appeal waiver is
inapplicable because the government breached the plea agreement. We do not
address this issue because we conclude that Martin is not entitled to relief on the
merits. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir.2006) (holding
that a valid appeal waiver does not implicate our jurisdiction).              The
government’s motion for dismissal of the appeal and alternative motion for
summary affirmance are therefore DENIED.
      The district court’s comments regarding Martin’s criminal history and
history of flight from law enforcement did not double-count factors already
considered in the guidelines range; rather, these comments reflect the court’s
opinion that those factors were extraordinarily egregious here. Cf. Sanchez-
Ramirez, 497 F.3d 531, 535-36 (5th Cir. 2007). The district court’s factual
findings are reviewed for clear error, and its comments about Martin’s criminal
history and manner of earning a living are not implausible in light of the record
as a whole. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      The district court was not precluded from considering the fact that Martin
shot someone with the firearm he illegally possessed merely because the court
had ruled that an attempted murder cross-reference under the Guidelines was
inapplicable. Cf. United States v. Lopez-Salas, 513 F.3d 174, 180-81 (5th Cir.
2008). There is no basis in law for Martin’s contention that the district court
was required to consider a departure under the Guidelines before imposing a
variance. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United

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                                No. 07-60772

States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007). As Martin has failed
to provide evidence of any similarly situated defendant who received a lower
sentence, his contention that the district court failed to consider unwarranted
sentence disparities is unavailing. See Smith, 440 F.3d at 709. The district
court’s judgment is AFFIRMED.




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