United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 5, 2004
Charles R. Fulbruge III
Clerk
No. 04-10104
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BELVIN GILMORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:03-CR-241-ALL-Y)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
David Belvin Gilmore appeals the sentence imposed after his
guilty-plea conviction for two counts of bank robbery, in violation
of 18 U.S.C. § 2113(a). Gilmore contends that the district court
erred in imposing his sentence by not explicitly considering the
factors listed in 18 U.S.C. § 3553(a) and not explaining its
reasoning for imposing a sentence to run consecutively to, rather
than concurrently with, any sentence imposed following a Colorado
state parole revocation. Gilmore did not raise these objections at
*
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this opinion should not be published and is not precedent except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.
the sentencing hearing. Therefore, we review only for plain error.
United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir.
2000), cert. denied, 531 U.S. 1097. This court may correct
forfeited errors only when a clear or obvious error affected
substantial rights. United States v. Ferguson, 211 F.3d 878, 886
(5th Cir. 2000), cert. denied, 531 U.S. 909. If these factors are
satisfied, we retain discretion whether to correct the plain error.
Id.
A court’s implicit consideration of the factors in 18 U.S.C.
§ 3553(a) is sufficient. United States v. Richardson, 87 F.3d 706,
711 (5th Cir. 1996). Although the district court did not expressly
refer to 18 U.S.C. § 3553(a), the record indicates that it
implicitly considered the first two § 3553(a) factors when it
considered (1) Gilmore’s criminal history and characteristics and
(2) the need for deterrence, protection of the public from further
crimes, and promotion of respect for the law. The Presentence
Investigation Report also advised the district court of the kinds
of sentences available, the types of sentences and sentencing
range, and any applicable policy statements in Chapter 7 of the
Sentencing Guidelines. The district court was therefore aware of
these factors and is presumed to have considered them. See
Izaguirre-Losoya, 219 F.3d at 439-40.
Likewise, Gilmore has not shown that the district court
plainly erred in not giving further reasons for its decision to
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impose a consecutive sentence. See United States v. Gonzalez, 250
F.3d 923, 930-31 (5th Cir. 2001). He does not show that, in the
light of the district court’s discretion, it, inter alia, committed
a clear or obvious error by imposing a consecutive sentence, given
Gilmore’s criminal background. See Izaguirre-Losoya, 219 F.3d at
441-42.
Gilmore also maintains the district court improperly sentenced
him based on facts not admitted or found by a jury, in violation of
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). This
contention is foreclosed by United States v. Pineiro, 377 F.3d 464
(5th Cir. 2004), petition for cert. filed, (14 July 2004).
AFFIRMED
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