Case: 17-51071      Document: 00514620888         Page: 1    Date Filed: 08/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-51071                                FILED
                                  Summary Calendar                        August 29, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DUSTIN GLASS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:17-CR-574-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Dustin Glass appeals his 121-month sentence for receipt and distribution
of child pornography and possession of child pornography. He contends that a
downward departure from the advisory guidelines range was warranted
pursuant to the policy statement in U.S.S.G. § 5H1.11 due to his prior military
service. He also challenges the substantive reasonableness of his sentence.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-51071    Document: 00514620888     Page: 2   Date Filed: 08/29/2018


                                 No. 17-51071

      We lack jurisdiction to review a district court’s failure to grant a
downward departure where, as here, there is nothing in the record to indicate
that the district court erroneously believed that it did not have authority to
depart. See United States v. Fillmore, 

, 255 (5th Cir. 2018); United
States v. Alaniz, 

, 627 (5th Cir. 2013).
      Glass asserts that his 121-month sentence—which was at the bottom of
the advisory guidelines range—is substantively unreasonable because the
district court failed to give adequate weight to his prior military service. The
district court imposed a sentence within the guidelines range that is entitled
to a presumption of reasonableness. See United States v. Campos-Maldonado,

, 338 (5th Cir. 2008). The district court adopted the findings and
calculations in the presentence report, considered the Glass’s military service
as well as other mitigating circumstances articulated by counsel, expressed
concern regarding the vast number of pornographic images for which Glass
was held accountable, and considered the 18 U.S.C. § 3553(a) factors. We find
no error in the district court’s sentence, see United States v. Rodriguez, 

, 522, 525-26 & n.1 (5th Cir. 2008), and we hold that Glass has failed
to rebut the presumption of reasonableness, see United States v. Cooks, 

, 186 (5th Cir. 2009).
      DISMISSED IN PART FOR LACK OF JURISDICTION; AFFIRMED IN
PART.




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