United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 3, 2007
Charles R. Fulbruge III
Clerk
No. 06-41549
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY KIRKPATRICK,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
(1:04-CR-236-1)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Kerry Kirkpatrick appeals his 105-month sentence and $6,000
fine for conspiring to import, conspiring to possess, importing,
and possessing with intent to distribute more than 50 kilograms of
marijuana. His jail sentence is within the applicable advisory
Guidelines range, and was imposed on remand following our court’s
decision in United States v. Kirkpatrick, 184 F. App’x. 421 (5th
Cir. 2006).
*
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this opinion should not be published and is not precedent except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.
Kirkpatrick erroneously contends that, under United States v.
Booker, 543 U.S. 220 (2005), the district court lacked authority to
sentence him for offenses involving 97.38 kilograms of marijuana
when the jury determined only that he was guilty of offenses
involving “more than 50 kilograms”. Because Kirkpatrick did not
raise this objection in district court, review is only for plain
error. See United States v. McCrimmon, 443 F.3d 454, 458 (5th
Cir.), cert. denied, 547 U.S. 1120 (2006). “In order to establish
plain error, the defendant must show (1) error, (2) that is clear
or obvious, and (3) that affects substantial rights.” Id. Even if
these three conditions are met, this court may only exercise its
discretion to notice a forfeited error if the error “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
Following Booker, the “sentencing judge is entitled to find by
a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range”. United States v.
Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Moreover, Kirkpatrick does not challenge the sufficiency
of the evidence supporting the district court’s drug-quantity
determination. Accordingly, he fails to show the district court
erred in basing his sentence on 97.38 kilograms of marijuana.
Kirkpatrick contends, for the first time in his reply brief,
that the presumption of reasonableness afforded within-Guidelines
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sentences under Mares, and its progeny, violates Booker.
Generally, our court will not consider contentions raised for the
first time in a reply brief. See Taita Chem. Co., Ltd., v.
Westlake Styrene Corp., 246 F.3d 377, 385 n.9 (5th Cir. 2001). In
any event, the assertion is foreclosed by Rita v. United States,
127 S. Ct. 2456, 2462 (2007).
Kirkpatrick additionally contends the district court erred by
failing to sufficiently consider his “rehabilitative efforts” since
his initial sentencing: apparently, his refraining from committing
any disciplinary infractions. He appears to assert both that: the
court erred in refusing to depart downward; and its failure to
consider his “efforts” violates 18 U.S.C. § 3553(a).
To the extent Kirkpatrick claims he should have been granted
a downward departure, this court lacks jurisdiction to review the
refusal, because there is no indication the district court believed
it lacked the authority to depart. See United States v. Hernandez,
457 F.3d 416, 424 & n.5 (5th Cir. 2006). Further, for his claim
based on § 3553(a), regardless of Kirkpatrick’s conduct since his
initial sentencing, the district court adequately considered the §
3553(a) factors. Under the discretionary sentencing system
established by Booker, district courts have a duty to consider
those factors, as well as a duty to correctly determine the
applicable Guidelines range. Mares, 402 F.3d at 518-19. If, in
the exercise of discretion, the sentencing judge imposes a sentence
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within a properly calculated guidelines range, little explanation
is required, and this court “will infer that the [district court]
has considered all the factors for a fair sentence set forth in the
Guidelines”. Id. at 519; see also Rita, 127 S. Ct. at 2468
(“[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy
explanation”.). Indeed, within-Guidelines sentences are afforded
a rebuttable presumption of reasonableness. United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Given the deference due
within-Guidelines sentences under Booker, “it will be rare for a
reviewing court” to hold a sentence within a properly calculated
Guidelines range unreasonable. Mares, 402 F.3d at 519.
Here, the district court expressly stated it had considered
several of the § 3553(a) factors, including the nature and
circumstances of the offense, the seriousness of the offense, the
need for adequate deterrence, and Kirkpatrick’s need for
correctional treatment in the form of drug rehabilitation. The
court was not required to do more. See Rita, 127 S. Ct. at 2468-
69. Further, because the court imposed a sentence within the
Guidelines range, this court infers that the district court
considered the necessary sentencing factors. See Mares, 402 F.3d
at 519. Kirkpatrick has failed to show that his within-Guidelines
sentence is unreasonable.
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Finally, Kirkpatrick contends the $6,000 fine, payable upon
his release from prison through 30 monthly installments of $200, is
unreasonable. We again review only for plain error because he
failed in district court to challenge the fine. See United States
v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).
Kirkpatrick’s contention fails. Courts following Booker have
a duty to consider the applicable Guidelines sentencing range.
Mares, 402 F.3d at 519. Here, the fine range under the Guidelines
was between $10,000 and $1,000,000. To avoid or lessen the fine,
the Guidelines require a defendant to establish he is unable, and
unlikely to become, able to pay a fine. U.S.S.G. § 5E1.2(a) and
(e). While Kirkpatrick was represented by appointed counsel in the
court below, this fact alone is not dispositive of whether he is
capable of paying the fine in the future. U.S.S.G. § 5E1.2 cmt.
n.3.
The Presentence Investigation Report shows Kirkpatrick owns a
truck that he purchased for $5,500 in 2004. Further, his counsel
stated at the sentencing hearing that Kirkpatrick has a substantial
prospect of becoming gainfully employed upon his release. As
stated above, the district court sufficiently considered the §
3553(a) factors. Under these circumstances, we cannot say the
$6,000 fine constituted plain error.
AFFIRMED
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