United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-30589
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS B. GENTRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50033-4
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Nicholas B. Gentry appeals his sentence of 226 months of
imprisonment for bank robbery. Gentry pleaded guilty to bank
robbery and use of firearm during a crime of violence, in
violation of 18 U.S.C. §§ 2113(a), (d), and 924(c)(1)(A).
Gentry was originally sentenced to 226 months of
imprisonment as to the bank robbery charge and a consecutive term
of 120 months of imprisonment for the firearm charge -- in
addition to supervised release, restitution, and special
assessments. His sentence was vacated by the district court
*
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this opinion should not be published and is not precedent except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. 06-30589
-2-
after Gentry filed a 28 U.S.C. § 2255 motion based on ineffective
assistance of counsel at sentencing. At resentencing, the
district court imposed a non-guidelines sentence of 226 months of
imprisonment for the bank robbery charge.
Gentry claims that the district court erred in unreasonably
resentencing him to 226 months of imprisonment on the bank
robbery conviction because the sentencing guidelines recommended
a term of imprisonment of 168 to 210 months. Gentry also argues
that the district court committed plain error in failing to
notify Gentry under FED. R. CRIM. P. 32(h) that it was considering
imposing a non-Guidelines sentence. Because Gentry did not
object in the trial court, each of these claims is reviewed for
plain error. See United States v. Jones, 444 F.3d 430, 436 (5th
Cir.) (citing United States v. Olano, 507 U.S. 725, 731 (1993)),
cert. denied, 126 S. Ct. 2958 (2006).
After United States v. Booker, 543 U.S. 220 (2005), this
court reviews sentences for reasonableness. United States v.
Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). When imposing a non-guidelines sentence, the district
court must more thoroughly articulate its reasons for the
sentence than when it imposes a sentence within the Guidelines
system. United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006). Such “reasons should be fact-specific and consistent with
the sentencing factors in [18 U.S.C. §] 3553(a).” Id. “The
farther a sentence varies from the applicable Guideline sentence,
No. 06-30589
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‘the more compelling the justification based factors in section
3553(a)’ must be.” Id. (citation omitted).
In this case, the district court imposed the non-guidelines
sentence on Gentry based on the seriousness of the offense, the
danger that was inflicted on the community, the harm to a police
officer injured during the crime, and to afford adequate
deterrence to criminal conduct along with protecting the public
from further crimes by the defendant. Because these are proper
factors for the court to consider, Smith, 440 F.3d at 709, we
conclude that Gentry’s 226-month sentence on the bank robbery
count was reasonable.
With respect to Gentry’s argument that he was prejudiced by
a lack of notice and opportunity to respond to the sentence
outside the Guidelines, Gentry must show an error that is plain
(i.e., “clear under current law,” Olano, 507 U.S. at 734) and
that affected his substantial rights. Given that the law at the
time Gentry was sentenced was not clear as to whether notice
(such as that described in FED. R. CRIM. P. 32(h)) was required
for non-guideline sentences, Gentry cannot meet this burden.
See United States v. Dean, No. 05-51015 (5th Cir. Oct. 23, 2006)
(unpublished); United States v. Mateo, 179 F. App’x 64, 65 (1st
Cir. 2006) (unpublished); United States v. Reddick, No. 05-11363,
2006 WL 1683461, at *5 (11th Cir. June 20, 2006).
AFFIRMED.