United States v. Vargas , 73 F. App'x 746 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 26, 2003
Charles R. Fulbruge III
Clerk
No. 02-21127
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOLANDA VARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-161-1
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Yolanda Vargas appeals her sentence following her guilty-
plea conviction of issuing over 2,700 false social security cards
to illegal aliens, in violation of 18 U.S.C. § 1028. She argues
that the district court erred when it departed upward two-levels
to reach her guideline range of imprisonment based on U.S.S.G.
§ 2L2.1, comment. (n.5), which allows upward departures for
identification fraud involving “substantially more than 100
documents.” Vargas argues that U.S.S.G. § 2L2.1 already provides
*
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that this opinion should not be published and is not precedent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.
No. 02-21127
-2-
an adjustment for cases involving 100 or more documents, thus,
the guideline already took her offense conduct into
consideration. Because she did not make this argument in the
district court, her argument is reviewed for plain error. United
States v. Musa, 45 F.3d 922, 924 & n.5 (5th Cir. 1995).
The district court correctly applied Application Note 5 when
it upwardly departed two-levels. Because 2,700 documents is
“substantially more than 100 documents,” see U.S.S.G. § 2L2.1,
comment. (n.5), the upward departure was justified. In addition,
the district court based its departure, in part, upon the threat
to the nation’s security placed by Vargas’ offense conduct. The
court found that the selling of false social security cards to
illegal aliens who hail from nations that are known to support
terrorism placed the nation in “great peril.” The guidelines
encourage departures for offense conduct which significantly
endangers national security. See U.S.S.G. § 5K2.14. Vargas
cannot show plain error; the judgment of the district court is
AFFIRMED.