UNITED STATES of America, Plaintiff-Appellee v. Ernesto V. BELL, Defendant-Appellant, 385 F. App'x 389

PER CURIAM: Ernesto V. Bell, federal prisoner # 13214-045, appeals the 36-month sentence imposed following revocation of the term of supervised release imposed following his conviction in the Western District of Missouri for conspiracy to distribute 50 grams or more of cocaine base. Bell argues that the sentence imposed is unreasonable. This court has declined to decide the appropriate standard of review for a sentence imposed upon revocation of supervised release in the wake of Booker. United States v. McKinney, 520 F.3d 425, 428 (5th Cir.2008).

There is no need to do so in this case, as the 36-month sentence imposed in this case is neither unreasonable nor plainly unreasonable. The term of imprisonment imposed by the district court in Bell’s case was not in violation of law. See 21 U.S.C. § 841(b)(1)(A)(iii); 18 U.S.C. §§ 3559(a)(1), 3583(e)(3). Although the sentence constitutes a substantial upward departure from the advisory guidelines range, the sentence is not unreasonable or plainly unreasonable. The record in this case reflects that the district court considered the policy statements contained in the Guidelines and the 18 U.S.C. § 3553(

a) factors in fashioning the sentence and adequately explained the reason for the sentence selected. See United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir.1994); United States v. Neal, 212 Fed.Appx. 328, 332 (5th Cir.2007). Accordingly, the judgment is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.