                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                       August 3, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 06-41549
                          Summary Calendar


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                               versus

                         KERRY KIRKPATRICK,


                                                  Defendant-Appellant.



         Appeals from the United States District Court
               for the Southern District of Texas
                         (1:04-CR-236-1)


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Kerry Kirkpatrick appeals his 105-month sentence and $6,000

fine for conspiring to import, conspiring to possess, importing,

and possessing with intent to distribute more than 50 kilograms of

marijuana.     His jail sentence is within the applicable advisory

Guidelines range, and was imposed on remand following our court’s

decision in United States v. Kirkpatrick, 184 F. App’x. 421 (5th

Cir. 2006).



     *
       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this opinion should not be published and is not precedent except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.
     Kirkpatrick erroneously contends that, under United States v.

Booker, 543 U.S. 220 (2005), the district court lacked authority to

sentence him for offenses involving 97.38 kilograms of marijuana

when the jury determined only that he was guilty of offenses

involving “more than 50 kilograms”.    Because Kirkpatrick did not

raise this objection in district court, review is only for plain

error.    See United States v. McCrimmon, 443 F.3d 454, 458 (5th

Cir.), cert. denied, 547 U.S. 1120 (2006).   “In order to establish

plain error, the defendant must show (1) error, (2) that is clear

or obvious, and (3) that affects substantial rights.”   Id.   Even if

these three conditions are met, this court may only exercise its

discretion to notice a forfeited error if the error “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.”    Id. (internal quotation marks omitted).

     Following Booker, the “sentencing judge is entitled to find by

a preponderance of the evidence all the facts relevant to the

determination of a Guideline sentencing range”.    United States v.

Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).   Moreover, Kirkpatrick does not challenge the sufficiency

of the evidence supporting the district court’s drug-quantity

determination.    Accordingly, he fails to show the district court

erred in basing his sentence on 97.38 kilograms of marijuana.

     Kirkpatrick contends, for the first time in his reply brief,

that the presumption of reasonableness afforded within-Guidelines

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sentences   under    Mares,   and    its    progeny,   violates     Booker.

Generally, our court will not consider contentions raised for the

first time in a reply brief.             See Taita Chem. Co., Ltd., v.

Westlake Styrene Corp., 246 F.3d 377, 385 n.9 (5th Cir. 2001).           In

any event, the assertion is foreclosed by Rita v. United States,

127 S. Ct. 2456, 2462 (2007).

     Kirkpatrick additionally contends the district court erred by

failing to sufficiently consider his “rehabilitative efforts” since

his initial sentencing: apparently, his refraining from committing

any disciplinary infractions.       He appears to assert both that: the

court erred in refusing to depart downward; and its failure to

consider his “efforts” violates 18 U.S.C. § 3553(a).

     To the extent Kirkpatrick claims he should have been granted

a downward departure, this court lacks jurisdiction to review the

refusal, because there is no indication the district court believed

it lacked the authority to depart.        See United States v. Hernandez,

457 F.3d 416, 424 & n.5 (5th Cir. 2006).          Further, for his claim

based on § 3553(a), regardless of Kirkpatrick’s conduct since his

initial sentencing, the district court adequately considered the §

3553(a)   factors.    Under   the    discretionary     sentencing   system

established by Booker, district courts have a duty to consider

those factors, as well as a duty to correctly determine the

applicable Guidelines range.        Mares, 402 F.3d at 518-19.      If, in

the exercise of discretion, the sentencing judge imposes a sentence


                                     3
within a properly calculated guidelines range, little explanation

is required, and this court “will infer that the [district court]

has considered all the factors for a fair sentence set forth in the

Guidelines”.      Id. at 519; see also Rita, 127 S. Ct. at 2468

(“[W]hen a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy

explanation”.).       Indeed, within-Guidelines sentences are afforded

a rebuttable presumption of reasonableness.                    United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).            Given the deference due

within-Guidelines sentences under Booker, “it will be rare for a

reviewing court” to hold a sentence within a properly calculated

Guidelines range unreasonable.           Mares, 402 F.3d at 519.

       Here, the district court expressly stated it had considered

several   of    the   §   3553(a)   factors,       including     the   nature    and

circumstances of the offense, the seriousness of the offense, the

need    for    adequate     deterrence,      and    Kirkpatrick’s       need     for

correctional treatment in the form of drug rehabilitation.                       The

court was not required to do more.           See Rita, 127 S. Ct. at 2468-

69.    Further, because the court imposed a sentence within the

Guidelines     range,     this   court   infers     that   the   district      court

considered the necessary sentencing factors.               See Mares, 402 F.3d

at 519.   Kirkpatrick has failed to show that his within-Guidelines

sentence is unreasonable.




                                         4
       Finally, Kirkpatrick contends the $6,000 fine, payable upon

his release from prison through 30 monthly installments of $200, is

unreasonable.    We again review only for plain error because he

failed in district court to challenge the fine.     See United States

v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).

       Kirkpatrick’s contention fails.   Courts following Booker have

a duty to consider the applicable Guidelines sentencing range.

Mares, 402 F.3d at 519.   Here, the fine range under the Guidelines

was between $10,000 and $1,000,000.      To avoid or lessen the fine,

the Guidelines require a defendant to establish he is unable, and

unlikely to become, able to pay a fine.      U.S.S.G. § 5E1.2(a) and

(e). While Kirkpatrick was represented by appointed counsel in the

court below, this fact alone is not dispositive of whether he is

capable of paying the fine in the future.      U.S.S.G. § 5E1.2 cmt.

n.3.

       The Presentence Investigation Report shows Kirkpatrick owns a

truck that he purchased for $5,500 in 2004.     Further, his counsel

stated at the sentencing hearing that Kirkpatrick has a substantial

prospect of becoming gainfully employed upon his release.         As

stated above, the district court sufficiently considered the §

3553(a) factors.     Under these circumstances, we cannot say the

$6,000 fine constituted plain error.

                                                             AFFIRMED




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