### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 E lton B e n t le pleaded guilty to one count of possession with in t ent to distribute m ethamphetamine. The di strict court sentenced Bentle a t the bottom o f the advisory guidelines r ange to 210 months of imprisonment and three years of supervised r e lease. Bentle contends that the district c ourt abused i ts discretion in denying a downward departure or variance because improper statements were used to enhance his sentence. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May21, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10838 Document: 00512248742 Page: 1 Date Filed: 05/21/2013No. 12-10838

Bentle raises the same p oints on appeal that he raised in the district court at s e ntencing a nd i n his sentencing memorandum, yet Bentle h ad failed to object to the reasonableness of h is s e n t e n c e after it w as imposed. Thus, r eview is arguably for plain error. See United S tates 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). W e n eed n ot d etermine w hich standard of review is appropriate, h owever, because Bentle’s claims fail e ven 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 d e f ects in the instant proceedings, in c luding a challenge to his post-arrest statements. See United States v. Glinsey , 209 F.3d 3 8 6, 392 ( 5th Cir. 2000); see also Rogers v. Maggio , 714 F.2d 35, 38 (5th C ir. 1983). Bentle does not c laim th at the district court denied his request for a d o wnward d eparture because the court erroneously believed that it h ad no authority to depa r t

. We do n o t, th erefore, have jurisdiction to review Bentle’s i nsistance that the district court e rred when it d enied his r equest for a downward departure. See United States v. Hernandez, 457 F.3d at 4 16, 424 & n .5 (5th Cir. 2006). Accordingly, his a ppeal 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 t o 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. Niko n o v a , 4 8 0 F .3d 371, 375 ( 5th Cir. 2007). After United States v. Booker , 543 U.S. 2 20, 261-63 (2005), ap p e l l a t e courts ordinarily will review sentences f

o r r e a s onableness. United States v. Mares , 402 F.3d 511, 520 (5th Cir. 2 005). B entle does not claim, though, that his sentence is unreasonable or cite to any of the § 3553(a) factors in support of a lower s entence. He thus f ails to r ebut the presumption that his within-guideline s e nt e n c e w a s reasonable. See United S tates v. Cooks , 589 F .3d 1 73, 186 (5th Cir. 2009). As s uch, he has failed

2 Case: 12-10838 Document: 00512248742 Page: 2 Date Filed: 05/21/2013No. 12-10838

to show that the district court committed error, plain o r o t herwise, in denying his motion for a variance. See id. The district court’s j udgment is AFFIRMED in part, and Bentle’s appeal is DISMISSED in part for lack of jurisdiction.

3 Case: 12-10838 Document: 00512248742 Page: 3 Date Filed: 05/21/2013