* 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should not be published and is not precedent except under the limited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. 07-60772

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARCELL CORNELIUS MARTIN

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:06-CR-212-1

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Marcell Cornelius Martin appeals his non-guidelines

sentence following his guilty plea conviction for possession of a firearm by a

felon. He contends that his sentence should be vacated as unreasonable because

(1) the district court’s upward variance was based on reasons that were already

accounted for under the Guidelines or that are not supported by the record; (2)

the district court ruled that an attempted murder cross-reference under the

Guidelines was inapplicable, but nevertheless took into account the facts

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-60772

2

underlying the dispute over the cross-reference; (3) the district court imposed a

variance without first considering a departure under the Guidelines; and (4) the

district court failed to consider the need to avoid unwarranted sentence

disparities among similarly situated defendants.

The government has moved for dismissal of the appeal or, alternatively,

summary affirmance, arguing that Martin’s appeal is barred by an appeal

waiver in his plea agreement. Martin counters that the appeal waiver is

inapplicable because the government breached the plea agreement. We do not

address this issue because we conclude that Martin is not entitled to relief on the

merits. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir.2006) (holding

that a valid appeal waiver does not implicate our jurisdiction). The

government’s motion for dismissal of the appeal and alternative motion for

summary affirmance are therefore DENIED.

The district court’s comments regarding Martin’s criminal history and

history of flight from law enforcement did not double-count factors already

considered in the guidelines range; rather, these comments reflect the court’s

opinion that those factors were extraordinarily egregious here. Cf. SanchezRamirez, 497 F.3d 531, 535-36 (5th Cir. 2007). The district court’s factual

findings are reviewed for clear error, and its comments about Martin’s criminal

history and manner of earning a living are not implausible in light of the record

as a whole. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.

2008).

The district court was not precluded from considering the factthat Martin

shot someone with the firearm he illegally possessed merely because the court

had ruled that an attempted murder cross-reference under the Guidelines was

inapplicable. Cf. United States v. Lopez-Salas, 513 F.3d 174, 180-81 (5th Cir.

2008). There is no basis in law for Martin’s contention that the district court

was required to consider a departure under the Guidelines before imposing a

variance. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United
No. 07-60772

3

States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007). As Martin has failed

to provide evidence of any similarly situated defendant who received a lower

sentence, his contention that the district court failed to consider unwarranted

sentence disparities is unavailing. See Smith, 440 F.3d at 709. The district

court’s judgment is AFFIRMED.