Fifth Circuit again affirms above-guideline sentence

Continuing a well-established reasonableness review pattern, the Fifth Circuit on Monday affirmed an above-guideline sentence in US v. Jones, No. 05-60152 (5th Cir. Mar. 27, 2006) (available here).  Here is the opening paragraph from Jones:

Robert Jones pleaded guilty to possession of child pornography in violation of 18 U.S.C § 2252A(a)(5)(B).  At sentencing, which occurred after the United States Supreme Court decided United States v. Booker, the district court sentenced Jones to the statutory maximum prison term of 120 months, which was beyond the 46-to-57 month range calculated under the Guidelines.  Jones challenges his sentence on three grounds, claiming, for the first time on appeal, that (1) in violation of Federal Rule of Criminal Procedure 32(h), he did not receive notice before sentencing that an upward departure was contemplated or notice of the grounds for that departure, (2) the district court based its decision to depart upwardly on impermissible factors, and (3) the sentence is unreasonable. Because we conclude that plain error has not been shown, we affirm Jones's sentence.