IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10190

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JESSIE KELLY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CR-140-1

Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.

PER CURIAM:*

Jessie Kelly appeals the sentence of 420 months of imprisonment imposed

following his guilty plea conviction for possessing a firearm in furtherance of a

drug trafficking offense. See 18 U.S.C. § 924. The sentence was above the

advisory guidelines sentencing range of 262 to 327 months but below the

statutory maximum sentence of life imprisonment. We affirm.

Appellate courts must review sentences for reasonableness in light of the

sentencing factors of 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 46,

United States Court of Appeals

Fifth Circuit

F I L E D

December 28, 2011

Lyle W. Cayce

Clerk

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.

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49-50 (2007). If error is preserved, as in the instant case, an appellate court

reviewing for reasonableness “merely asks whether the trial court abused its

discretion.” Rita v. United States, 551 U.S. 338, 351 (2007). The abuse of

discretion standard applies “whether the sentence imposed is inside or outside

the Guidelines range.” Gall, 552 U.S. at 51.

We reject Kelly’s claim that the district court improperly considered

records pertaining to his past. “[A] sentencing judge [may] exercise a wide

discretion in the sources and types of evidence used to assist him in” selecting

a sentence. Pepper v. United States, 131 S. Ct. 1229, 1240 (2011) (internal

quotation marks and citation omitted); see also 18 U.S.C. § 3661. This discretion

is not to be curbed by limitations concerning “the source from which [sentencing

information] may come,” except as set forth by law Pepper, 131 S. Ct. at 1240

(internal quotation marks and citation omitted); see also U.S.S.G. § 6A1.3. We

decline Kelly’s invitation to “invent a blanket prohibition” concerning the

evidence that sentencing courts may consider. Pepper, 131 S. Ct. at 1241

(internal quotation marks and citation omitted).

We reject also Kelly’s due process challenge based on an appearance of

bias. Kelly does not assert that the district court was biased or even

presumptively biased against him; yet only actual bias or presumptive bias gives

rise to a due process violation. See Richardson v. Quarterman, 537 F.3d 466, 475

(5th Cir. 2008). Kelly has thus abandoned this claim by failing to offer any legal

support for it. See United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.

2009). Additionally, circuit precedent forecloses the claim that the district court

violated Kelly’s constitutional rights of confrontation and cross-examination by

considering exhibits. See United States v. Navarro, 169 F.3d 228, 236 (5th Cir.

1999). We find no merit in Kelly’s claim that the district court failed to provide

adequate reasons for the sentence. The district court made clear that it imposed

an upward variance due to the nature and circumstances of the offense as well

as Kelly’s history and characteristics and in order to reflect the seriousness of

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the offense, promote respect for the law, provide a just punishment, adequately

deter future criminal conduct, and protect the public from further crimes by

Kelly. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

If a sentencing court determines that a sentence within the initial advisory

range would be insufficient to serve the purposes of sentencing, it may impose

either of two types of sentence falling outside that range: a departure, which is

a sentence authorized by one or more provisions of the Guidelines, or a variance,

which is a sentence that finds no specific authorization in the Guidelines. See

United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). As the district

court’s statement of reasons makes clear, Kelly’s was a variance sentence. As

a substantive matter, a sentence must be supported by the factors contained in

§ 3553(a). United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). A variance

“sentence unreasonably fails to reflect the [§ 3553(a)] factors where it (1) does

not account for a factor that should have received significant weight, (2) gives

significant weight to an irrelevant or improper factor, or (3) represents a clear

error of judgment in balancing the sentencing factors.” Id. at 708.

We reject Kelly’s speculative assertion that the district court determined

that his traumatic childhood was not truly a mitigating factor and instead

supported a more onerous sentence. We find no record support for Kelly’s

contention that the district court improperly justified “increased punishment”

based on his need for mental-health counseling and on its availability in prison. 

And we find no merit in Kelly’s assertion that the selected sentence presents a

clear error in the balancing of the § 3553(a) sentencing factors and that a

sentence of 327 months would have been reasonable. “The sentencing judge is

in a superior position to” determine whether the § 3553(a) factors support the

variance imposed. Gall, 552 U.S. at 51. The district court stated that it

sentenced Kelly as it did based on substantive considerations, including Kelly’s

characteristics and extensive criminal history starting at age 17, much of which

was not taken into account in determining his criminal history score. The fact

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that Kelly, or we, might “reasonably . . . conclude that a different sentence was

appropriate is [alone] insufficient to justify reversal of the district court.” Id.

AFFIRMED.

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