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

                                                                            FILED
                                                                            May 9, 2008
                                       No. 06-41720
                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

CLINTON JEROME RICHARDSON

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 5:06-CR-193-ALL


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Clinton Jerome Richardson appeals his sentence for possession with intent
to distribute more than 50 kilograms of marijuana. Richardson was sentenced
within a properly-calculated range under the United States Sentencing
Guidelines. Richardson argues that the district court erred by applying a
presumption of reasonableness to the Guidelines range and required him to
overcome this presumption contrary to Rita v. United States, 127 S. Ct. 2456,
2462 (2007). Richardson argues that because the district court applied this



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41720
presumption, it failed to give sufficient weight to the sentencing factors of
18 U.S.C. § 3553(a).
       We review a district court’s sentencing decision for reasonableness. Gall
v. United States, 128 S. Ct. 586, 594 (2007); Kimbrough v. United States, 128 S.
Ct. 558, 564 (2007) (citing United States v. Booker, 543 U.S. 220, 244 (2005));
Rita, 127 S. Ct. at 2459. We review for procedural error under a mixed de
novo/clear error1 standard and review the substantive reasonableness of
procedurally-sound sentences imposed inside or outside the Guidelines range
under an abuse of discretion standard. Gall, 128 S. Ct. at 591.
       In determining whether there was procedural error in sentencing we ask,
among other things, whether the district court correctly calculated the
“applicable Guidelines range,” and whether the court considered all of the §
3553(a) factors “to determine whether they support the sentence requested by
a party.” Gall, 128 S. Ct. at 596. In considering the § 3553(a) factors, the
sentencing court, as Richardson argues, “does not enjoy the benefit of a legal
presumption that the Guidelines sentence should apply.” Rita, 127 S. Ct. at
2465; see also Gall, 128 S. Ct. at 596-97 (in considering the factors, the district
court “may not presume that the Guidelines range is reasonable”).
       We review the “substantive reasonableness of the sentence” for abuse of
discretion. Where, as here, the sentence falls within a properly-calculated
Guidelines range, this court has held that the sentence should be afforded a
rebuttable presumption of reasonableness on appeal. United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006). The Supreme Court has affirmed the use of
this presumption. Gall, 128 S. Ct. at 597 (citing Rita) (“If the sentence is within
the Guidelines range, the appellate court may, but is not required to, apply a
presumption of reasonableness.”); Rita, 127 S. Ct. at 2462 (concluding that an


       1
        Specifically, we review the courts’s interpretation or application of the Guidelines de
novo, and its factual findings for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).

                                               2
                                     No. 06-41720
appellate court “may apply a presumption of reasonableness to a district court
sentence that reflects a proper application of the Sentencing Guidelines”).
       Richardson urges that the sentence imposed was procedurally flawed
because the district court applied a presumption of reasonableness to the
applicable Guidelines range and failed to give sufficient weight to the sentencing
factors of 18 U.S.C. § 3553(a). In rejecting Richardson’s request for a below-
Guidelines sentence, the district court did not require Richardson to overcome
a presumption that the Guidelines range should apply or that the Guidelines
range was reasonable. Unlike in the Sixth Circuit case of United States v. Wilms
cited by Richardson, where the sentencing court stated that “‘the guidelines are
presumptively reasonable,’” 495 F.3d 277, 279 (6th Cir. 2007), the district court
did not indicate any such presumption in its decision.             When Richardson’s
attorney asked the court for a variance from the Guidelines or from the
Guidelines range, citing to Richardson’s family support obligations, his
education, and his work ethic, the judge considered these factors but stated,
“there’s other considerations” such as “the societal problem of trying to deter
drug trafficking.      The fairness and equality of how others are treated,
consistency in treating people, deterrence, et cetera . . . .” Nor did the court, in
considering the consistency of sentencing, treat the Guidelines as mandatory in
violation of Booker or the more recent holdings of Kimbrough;2 rather, it properly
considered consistency as one of the factors. See Kimbrough, 128 S. Ct. at 574
(addressing a Booker question of whether the crack/powder sentencing ratios are
mandatory in light of the “need to avoid unwarranted disparities” in sentencing,
and holding that they are not mandatory). Finally, the judge’s statement that
“[w]e have to have a pretty unusual reason to – to vary from the safety valve.
And all the stuff you’re talking about is kind of routine” does not indicate that
he presumed the Guidelines to be reasonable. Nor does this statement show


       2
       Although Kimbrough generally applies to sentencing cases involving crack or cocaine,
Richardson argues that its principles are relevant here.

                                            3
                                         No. 06-41720
that the judge believed that a deviation from the Guidelines would be justified
only in “extraordinary circumstances.” See Gall, 128 S. Ct. at 591.
       The judge’s statements during the sentencing hearing also reflected
consideration of the § 3553(a) factors. 18 U.S.C. § 3553(a) describes seven
factors to be considered by the sentencing judge:
       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed . . .
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range established . . .
       (5) any pertinent policy statement--
       (6) the need to avoid unwarranted sentence disparities among
       defendants with similar records who have been found guilty of
       similar conduct; and
       (7) the need to provide restitution to any victims of the offense.

In imposing Richardson’s sentence, the court considered and gave sufficient
weight to these factors.3 Richardson has not shown any procedural flaw in his
sentencing and also has not overcome the presumption of reasonableness that
applies to his sentence on appeal. See Alonzo, 435 F.3d at 554.
       The judgment of the district court is AFFIRMED.


       3
          The judge stated, for example, “And you . . . came up to the checkpoint . . . in a
commercial tractor-trailer rig and inside was some marijuana. Roughly, 70 some kilos.” He
considered Richardson’s personal history, including his various jobs and educational pursuits,
how he was “raised mostly” by his mother, and how Richardson has family members to
support. The judge’s statements about the offense (drug trafficking) and the “societal problem”
of attempting to deter that kind of offense show that he considered the need for the sentence
imposed and the policy associated with the sentence, and as we have discussed, he expressly
considered the need to treat similar offenses consistently. He also discussed the potential
sentences and the sentencing range in Richardson’s case, including the Government’s
recommendation of the safety valve, “which was originally designed more for people who are
facing heavy minimum sentences, which you’re [referring to Richardson] not,” and how the
range was 41 to 51 months, but that it “dropped down to 17.” He stated, “you’re not going to
be in Column 2 or Column 3 or Column 4. And you’re not being prevented from the safety
valve. And you are going to get less than this report. . . . but you’re going to serve some time.”
Finally, he considered payment, although not labeling it as restitution, stating, “I’m supposed
to fine you thousands of dollars. I’ll skip that and let you serve out in what we call community
service hours. . . . 100 hours . . . doing something useful . . . to help out in the community . . .
that’s a way of paying off a substantial fine that I’m supposed to give you.”

                                                 4
