* 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this opinion should not be published and is not precedent except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

January 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30589

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICHOLAS B. GENTRY,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:03-CR-50033-4

--------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Nicholas B. Gentry appeals his sentence of 226 months of

imprisonment for bank robbery. Gentry pleaded guilty to bank

robbery and use of firearm during a crime of violence, in

violation of 18 U.S.C. §§ 2113(a), (d), and 924(c)(1)(A). 

Gentry was originally sentenced to 226 months of

imprisonment as to the bank robbery charge and a consecutive term

of 120 months of imprisonment for the firearm charge -- in

addition to supervised release, restitution, and special

assessments. His sentence was vacated by the district court
No. 06-30589

-2-

after Gentry filed a 28 U.S.C. § 2255 motion based on ineffective

assistance of counsel at sentencing. At resentencing, the

district court imposed a non-guidelines sentence of 226 months of

imprisonment for the bank robbery charge. 

Gentry claims that the district court erred in unreasonably

resentencing him to 226 months of imprisonment on the bank

robbery conviction because the sentencing guidelines recommended

a term of imprisonment of 168 to 210 months. Gentry also argues

that the district court committed plain error in failing to

notify Gentry under FED. R. CRIM. P. 32(h) that it was considering

imposing a non-Guidelines sentence. Because Gentry did not

object in the trial court, each of these claims is reviewed for

plain error. See United States v. Jones, 444 F.3d 430, 436 (5th

Cir.) (citing United States v. Olano, 507 U.S. 725, 731 (1993)),

cert. denied, 126 S. Ct. 2958 (2006).

After United States v. Booker, 543 U.S. 220 (2005), this

court reviews sentences for reasonableness. United States v.

Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005). When imposing a non-guidelines sentence, the district

court must more thoroughly articulate its reasons for the

sentence than when it imposes a sentence within the Guidelines

system. United States v. Smith, 440 F.3d 704, 707 (5th Cir.

2006). Such “reasons should be fact-specific and consistent with

the sentencing factors in [18 U.S.C. §] 3553(a).” Id. “The

farther a sentence varies from the applicable Guideline sentence,
No. 06-30589

-3-

‘the more compelling the justification based factors in section

3553(a)’ must be.” Id. (citation omitted).

In this case, the district court imposed the non-guidelines

sentence on Gentry based on the seriousness of the offense, the

danger that was inflicted on the community, the harm to a police

officer injured during the crime, and to afford adequate

deterrence to criminal conduct along with protecting the public

from further crimes by the defendant. Because these are proper

factors for the court to consider, Smith, 440 F.3d at 709, we

conclude that Gentry’s 226-month sentence on the bank robbery

count was reasonable.

With respect to Gentry’s argument that he was prejudiced by

a lack of notice and opportunity to respond to the sentence

outside the Guidelines, Gentry must show an error that is plain

(i.e., “clear under current law,” Olano, 507 U.S. at 734) and

that affected his substantial rights. Given that the law at the

time Gentry was sentenced was not clear as to whether notice

(such as that described in FED. R. CRIM. P. 32(h)) was required

for non-guideline sentences, Gentry cannot meet this burden. 

See United States v. Dean, No. 05-51015 (5th Cir. Oct. 23, 2006)

(unpublished); United States v. Mateo, 179 F. App’x 64, 65 (1st

Cir. 2006) (unpublished); United States v. Reddick, No. 05-11363,

2006 WL 1683461, at *5 (11th Cir. June 20, 2006).

AFFIRMED.