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this opinion should not be published and is not precedent except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

June 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40291

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EVERETT LOUIS KELLY,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:97-CR-276

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

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

Everett Louis Kelly appeals the sentence imposed following

the revocation of the supervised release imposed following his

convictions for two counts of forging an endorsement on a

Treasury check and one count of delivering Treasury checks

knowing that they contained forged endorsements. Kelly argues

that the sentence imposed was unreasonable despite being within

the properly calculated advisory guidelines range because the

district court did not properly take into account the mitigating

evidence he presented. The Government asserts that this court
No. 06-40291

-2-

does not have jurisdiction to consider Kelly’s argument because

his argument is the equivalent of arguing that the district court

refused to grant a downward departure.

Even following United States v. Booker, 543 U.S. 220 (2005),

we lack jurisdiction to review a district court’s denial of a

request for a downward departure from the guidelines sentence

range unless the district court erroneously believes that it did

not have the authority to make a departure. United States v.

Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006). Kelly,

however, argues that sentence imposed was unreasonable, not that

the district court abused its discretion by not making a downward

departure. We do have jurisdiction to review a sentence for

reasonableness whether or not the sentence is within the

guidelines range. See Booker, 543 U.S. at 260; United States v.

Kane, 452 F.3d 140, 144 (2d Cir. 2006); United States v. ChavezDiaz, 444 F.3d 1223, 1228-29 (10th Cir. 2006).

Since United States v. Booker, 543 U.S. 220 (2005), we have

yet to determine whether sentences imposed following the

revocation of supervised release should be reviewed under the

plainly unreasonable standard previously applicable or the

unreasonableness standard set forth in Booker, and we need not do

so in this case because the sentence imposed passes muster under

either standard. See United States v. Hinson, 429 F.3d 114, 119-

20 (5th Cir. 2005). While the district court could have

explained the rationale for the sentence imposed more clearly, it
No. 06-40291

-3-

did indicate that it imposed the sentence it did to suit the best

interests of the public. Furthermore, as the district court

sentenced Kelly within the advisory guidelines range, it is

inferred that it considered all the factors set forth in the

Guidelines. See United States v. Candia, 454 F.3d 468, 473 (5th

Cir. 2006). The sentence imposed by the district court was

neither unreasonable nor plainly unreasonable. See Hinson, 429

F.3d at 120. 

AFFIRMED.