IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10838

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BARRY ELTON BENTLE,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas 

USDC No. 4:12-CR-25-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Barry Elton Bentle pleaded guilty to one count of

possession with intent to distribute methamphetamine. The district court

sentenced Bentle at the bottom of the advisory guidelines range to 210 months

of imprisonment and three years of supervised release. Bentle contends that the

district court abused its discretion in denying a downward departure or variance

because improper statements were used to enhance his sentence. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 21, 2013

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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No. 12-10838

Bentle raises the same points on appeal that he raised in the district court

at sentencing and in his sentencing memorandum, yet Bentle had failed to object

to the reasonableness of his sentence after it was imposed. Thus, review is

arguably for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th

Cir. 2007); but see United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). 

We need not determine which standard of review is appropriate, however,

because Bentle’s claims fail even under the abuse-of-discretion standard. See

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

By pleading guilty, Bentle waived all nonjurisdictional defects in the

instant proceedings, including a challenge to his post-arrest statements. See

United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); see also Rogers v.

Maggio, 714 F.2d 35, 38 (5th Cir. 1983). Bentle does not claim that the district

court denied his request for a downward departure because the court

erroneously believed that it had no authority to depart. We do not, therefore,

have jurisdiction to review Bentle’s insistance that the district court erred when

it denied his request for a downward departure. See United States v. Hernandez,

457 F.3d at 416, 424 & n.5 (5th Cir. 2006). Accordingly, his appeal is dismissed

in part for lack of jurisdiction. See United States v. Martinez, 263 F.3d 436, 440

(5th Cir. 2001).

We do, however, have jurisdiction to consider a challenge to the sentencing

court’s denial of a variance based on 18 U.S.C. § 3553(a) grounds. See United

States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007). After United States v.

Booker, 543 U.S. 220, 261-63 (2005), appellate courts ordinarily will review

sentences for reasonableness. United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005). Bentle does not claim, though, that his sentence is unreasonable or

cite to any of the § 3553(a) factors in support of a lower sentence. He thus fails

to rebut the presumption that his within-guideline sentence was reasonable. See

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). As such, he has failed

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No. 12-10838

to show that the district court committed error, plain or otherwise, in denying

his motion for a variance. See id.

The district court’s judgment is AFFIRMED in part, and Bentle’s appeal

is DISMISSED in part for lack of jurisdiction.

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