     Case: 12-51055       Document: 00512331525         Page: 1     Date Filed: 08/05/2013




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

                                                                            FILED
                                                                           August 5, 2013
                                     No. 12-51055
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JERMAINE MEDEARIS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:12-CR-132-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pursuant to his guilty-plea conviction for assaulting, resisting, or impeding
two United States deputy marshals, Jermaine Medearis received a within-
Guidelines sentence of 41 months’ imprisonment. He contends: his sentence is
substantively unreasonable due to the double counting of his prior convictions
for determining his career-offender status and criminal-history score; the district
court failed, inter alia, to consider that he faced a revocation sentence arising out



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-51055

of the same conduct, and that he had two children; and a sentence at the bottom
of the advisory Guidelines sentencing range would have been more reasonable.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). Medearis does not claim procedural error.
      Because Medearis did not object to the substantive reasonableness of his
sentence in district court, review is only for plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).         For reversible plain error,
Medearis must show, inter alia, a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
He fails to do so.
      Medearis notes the standard of review for substantive- reasonableness
claims not raised in district court is subject to a circuit split, and contends the
approach of the Seventh and Ninth Circuits to apply an abuse-of-discretion
standard is correct. See United States v. Autery, 555 F.3d 864, 869-71 (9th Cir.
2009); United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005). He
acknowledges this contention is foreclosed by our court’s decision in Peltier, and
raises it only to preserve it for possible further review.
      Our court has held “double-counting is prohibited only if it is specifically
forbidden by the particular [G]uideline at issue”. United States v. Calbat, 266
F.3d 358, 364 (5th Cir. 2001) (emphasis added). Guideline § 4B1.1 (defining
“career offender”, and setting offense levels and advisory sentencing ranges for
such offenders) does not prohibit the double counting which Medearis complains

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                                 No. 12-51055

renders his sentence unreasonable. Moreover, the district court considered
Medearis’ reasons for requesting a lower sentence, including his facing a
revocation sentence. The court stated it had considered the 18 U.S.C. § 3553(a)
factors and found “the [G]uideline range in this case to be fair and reasonable”.
Medearis’ within-Guidelines sentence is presumptively reasonable and entitled
to great deference. E.g., United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). Medearis has not shown his sentence is substantively unreasonable, nor
has he rebutted the presumption of reasonableness that attaches to his
within-Guidelines sentence. See United States v. Rodriguez, 523 F.3d 519, 526
(5th Cir. 2008).
      AFFIRMED.




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