* 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. 08-60163

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

KEN NOWLIN

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:07-CR-108-2

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Ken Nowlin appeals the 30-month sentence imposed following his guilty

plea conviction for conspiracy to commit an offense against the United States by

corruptly accepting health insurance commission payments to influence a health

insurance contract. Nowlin argues that the sentence imposed was unreasonable

in light of the uncontradicted evidence of his substantial assistance to the

Government and the fact that he paid full restitution prior to his guilty plea.

Nowlin complains about the disparity between his sentence and the 36-month

United States Court of Appeals

Fifth Circuit

F I L E D

October 2, 2008

Charles R. Fulbruge III

Clerk
No. 08-60163

2

sentence given to his co-defendant, who, unlike Nowlin, was a public official who

used the public trust to defraud the Government. He contends that 18 U.S.C.

§ 3553(a) precludes the district court from imposing a sentence greater than

necessary and that the district court did not give proper weight to his

substantial assistance and, thus, imposed an unreasonable sentence. 

Under the discretionary sentencing system established by United States

v. Booker, 543 U.S. 220 (2005), district courts retain a duty to consider the

Sentencing Guidelines, along with the sentencing factors set forth in 18 U.S.C.

§ 3553(a). United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). This

court reviews the sentence imposed for reasonableness in light of the factors set

forth in § 3553(a). Id. at 519. In Gall v. United States, 128 S. Ct. 586, 597

(2007), the Supreme Court held that the appellate court must determine

whether the district court committed any procedural errors, “such as failing to

calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence -- including an explanation for any deviation from the

Guidelines range.” If the district court’s decision is procedurally sound, this

court will “consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard . . .tak[ing] into accountthe totality ofthe

circumstances.” Id.

Nowlin has not challenged the district court’s calculation of the guidelines

range. A post-Booker discretionary sentence imposed within a properly

calculated guideline range is entitled to a rebuttable presumption of

reasonableness and great deference. United States v. Alonzo, 435 F.3d 551, 554

(5th Cir. 2006). Appellate courts reviewing sentencing decisions for

reasonableness must apply an abuse of discretion standard. Gall, 128 S. Ct. at

596. 
No. 08-60163

3

Although Nowlin presented reasons for receiving a sentence at the lower

end of the guidelines range or even below the guidelines range, he has failed to

rebut the presumption that the sentence imposed was reasonable. The record

reflects that the district court listened to Nowlin’s arguments, reviewed the

record, and read the letters of support written on Nowlin’s behalf. The district

court noted that the crime was serious because it had destroyed the faith of the

public in their Government. The district court also stated that it had considered

the factors enumerated in § 3553(a). The district court considered the proper

factors and adequately explained the sentence being given. In light of the

deference due to the district court’s sentencing decisions, there was no abuse of

discretion. See Gall, 128 S. Ct. at 597; Alonzo, 435 F.3d at 554.

The sentence is AFFIRMED.