* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40611

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARL LEE JACKSON, JR., also known as Patches

Defendant-Appellant

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:04-CR-116-6

Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Having pleaded guilty to conspiracy to manufacture, distribute, or possess

cocaine with intent to distribute, in violation of 21 U.S.C. § 846, Carl Lee

Jackson was sentenced, inter alia, to 48-months imprisonment, to run

consecutive to his state sentences for related conduct. Jackson challenges his

sentence as being unreasonable, contending Sentencing Guidelines § 5G1.3(b)
No. 05-40611

2

(sentencing adjustment for related state sentences) should have been applied in

the light of his sentences for related state offenses. AFFIRMED.

I.

In his plea agreement, Jackson waived his right to appeal, with the

exception of, inter alia, any upward departure from the sentencing-guidelines

range. The district court considered the time Jackson had been imprisoned for

state offenses related to the instant federal conviction: a completed 68-month

sentence and 15 months of an undischarged 48-month sentence on eight state

convictions. Jackson’s offense level of 27 and criminal history category of II

yielded a guidelines range of 78 to 97 months’ imprisonment. He was sentenced,

inter alia, to 48 months, to be served consecutively to any state sentence he had

served, or was serving.

II.

As a threshold matter, the Government does not contend that this appeal

is barred by Jackson’s appeal waiver. Therefore, his appeal is not barred.

Jackson contends the district court should have applied § 5G1.3(b), as

requested at sentencing, which would require his sentence to run concurrently

with his state sentence and be adjusted for time already served for related state

offenses. Along that line, he maintains the district court’s not doing so resulted

in an upward departure and an unreasonable sentence, considering his state and

federal sentences could total far in excess of the top of his sentencing-guidelines

range (97 months).

Jackson does not contend application of § 5G1.3(b) is mandatory, and this

court has not so held. United States v. Bell, 46 F.3d 442, 446 (5th Cir. 1995); see

United States v. Candia, 454 F.3d 468, 474-75 (5th Cir. 2006) (considering
No. 05-40611

3

U.S.S.G. § 5G1.3(c)). Nor does Jackson claim his guidelines range was

improperly calculated.

The district court’s application of the guidelines is reviewed de novo; its

findings of fact, for clear error. E.g., United States v. Smith, 440 F.3d 704, 706

(5th Cir. 2006). Ultimate sentences are reviewed for reasonableness. E.g.,

United States v. Booker, 543 U.S. 220, 261-62 (2005); UnitedStates v. Mares, 402

F.3d 511, 520 (5th Cir. 2005). This reasonableness inquiry is guided by the

factors in 18 U.S.C. § 3553(a); the sentence is not required to fall within the

guidelines range. Mares, 402 F.3d at 519. “[W]hen the judge elects to give a

non-Guideline sentence, she should carefully articulate the reasons she

concludes that the sentence she has selected is appropriate”. Id.

The district court considered § 5G1.3(b) and noted that the 48-month

consecutive sentence exceeded the guidelines range. It stated reasons for

imposing the sentence, including Jackson’s long history as a crack dealer and the

need for an adequate deterrent to future criminal conduct. The sentence was

reasonable.

III.

For the foregoing reasons, the judgment is AFFIRMED.