United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2007
Charles R. Fulbruge III
Clerk
No. 06-40291
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT LOUIS KELLY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:97-CR-276
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Everett Louis Kelly appeals the sentence imposed following
the revocation of the supervised release imposed following his
convictions for two counts of forging an endorsement on a
Treasury check and one count of delivering Treasury checks
knowing that they contained forged endorsements. Kelly argues
that the sentence imposed was unreasonable despite being within
the properly calculated advisory guidelines range because the
district court did not properly take into account the mitigating
evidence he presented. The Government asserts that this 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this opinion should not be published and is not precedent except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. 06-40291
-2-
does not have jurisdiction to consider Kelly’s argument because
his argument is the equivalent of arguing that the district court
refused to grant a downward departure.
Even following United States v. Booker, 543 U.S. 220 (2005),
we lack jurisdiction to review a district court’s denial of a
request for a downward departure from the guidelines sentence
range unless the district court erroneously believes that it did
not have the authority to make a departure. United States v.
Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006). Kelly,
however, argues that sentence imposed was unreasonable, not that
the district court abused its discretion by not making a downward
departure. We do have jurisdiction to review a sentence for
reasonableness whether or not the sentence is within the
guidelines range. See Booker, 543 U.S. at 260; United States v.
Kane, 452 F.3d 140, 144 (2d Cir. 2006); United States v. Chavez-
Diaz, 444 F.3d 1223, 1228-29 (10th Cir. 2006).
Since United States v. Booker, 543 U.S. 220 (2005), we have
yet to determine whether sentences imposed following the
revocation of supervised release should be reviewed under the
plainly unreasonable standard previously applicable or the
unreasonableness standard set forth in Booker, and we need not do
so in this case because the sentence imposed passes muster under
either standard. See United States v. Hinson, 429 F.3d 114, 119-
20 (5th Cir. 2005). While the district court could have
explained the rationale for the sentence imposed more clearly, it
No. 06-40291
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did indicate that it imposed the sentence it did to suit the best
interests of the public. Furthermore, as the district court
sentenced Kelly within the advisory guidelines range, it is
inferred that it considered all the factors set forth in the
Guidelines. See United States v. Candia, 454 F.3d 468, 473 (5th
Cir. 2006). The sentence imposed by the district court was
neither unreasonable nor plainly unreasonable. See Hinson, 429
F.3d at 120.
AFFIRMED.