* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30446

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSEPH BUNN, also know as JoJo

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CR-152-1

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

Defendant Joseph Bunn challenges the 262-month sentence imposed

following his guilty-plea conviction for one count of knowingly and intentionally

distributing at least five grams of cocaine base. The sentence included an

enhancement based on the district court’s finding that Bunn was a career

offender under U.S.S.G. § 4B1.2 because he had at least two qualifying prior

felony convictions.

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-30446

2

This court reviews questions of the interpretation of the Sentencing

Guidelines, such as § 4B1.1, as a question of law subject to de novo review.

United States v. Angeles-Mendoza, 407 F.3d 742, 746-47 (5th Cir. 2005); United

States v. Shano, 955 F.2d 291, 294 (5th Cir. 1992) (internal citations omitted).

Application of the Guidelines to the facts of a case are reviewed for clear error.

Id.

Bunn argues that the district court erred in finding that he was a career

offender under the Guidelines. Bunn concedes that he has a prior conviction in

Georgia for distributing drugs that counts as a prior felony conviction for

purposes of § 4B1.1. He contends, however, that the aggravated battery

conviction which was counted for purposes of § 4B1.1 should not have been used

because the underlying facts and circumstances of the incident did not make it

a crime of violence. However, the appropriate inquiry under U.S.S.G. § 4B1.2,

which defines “crime of violence”for purposes of § 4B1.1, focuses on the elements

of the crime, not the defendant’s actual conduct in committing the offense.

United States v. Garcia, 470 F.3d 1143, 1147 (5th Cir. 2006). Bunn’s argument

is without merit.

Bunn also argues that the district court erred in denying his motion for a

downward departure or variance. However, there is no indication in the record

that the district court believed that it lacked authority to grant a downward

adjustment or variance. Accordingly, this court lacks jurisdiction to review this

issue. See United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). When a

defendant’s motion for downward departure has been denied, he may still argue

on appeal that his sentence was unreasonable because the district court failed

to adequately consider factors counseling in favor of a downward departure. See

United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S.Ct.

163 (2007). 

Bunn argues that his sentence was unreasonable because the district

court focused solely on his criminal history and gave insufficient weight to the
No. 07-30446

3

other factors setforth in 18 U.S.C. § 3553(a) and to mitigating factors such as his

mental and physical health problems. The record shows that the district court

did in fact consider Bunn’s health problems. As for whether the district court

properly considered the factors set forth in § 3553(a), Bunn, who received a

sentence within the suggested guidelines range, does not contend thatthe range

was improperly calculated. “[A] sentence within a properly calculated guideline

range is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554

(5th Cir. 2006). Further, when a sentencing court exercises its discretion to

impose a sentence within a properly calculated guidelines range, this court

infers that the district court considered all of the factors required for a fair

sentence. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Bunn’s

arguments are without merit. 

AFFIRMED.