United States v. Thomas , 209 F. App'x 370 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-30281
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER JAMES THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:04-CR-161-1)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Walter James Thomas challenges the district court’s upward
departure and deviation from the Guideline range, following his
guilty-plea conviction for one count each for mail fraud, money
laundering, and making a false statement on a tax return. See 18
U.S.C. §§ 1341, 1956(a)(1)(A)(I); 26 U.S.C. §§ 7206(1). The
Guideline range of imprisonment was 70 to 87 months. After
departing upward one criminal-history category, the district court
*
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this opinion should not be published and is not precedent except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.
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determined the resulting 84-to-105-month sentencing range was still
insufficient and imposed a non-Guideline sentence (upward
deviation) of 120 months. See United States v. Smith, 440 F.3d
704, 706-07 (5th Cir. 2006).
In imposing the criminal-history-category upward departure,
the district court considered: Thomas’ criminal conduct not
counted under the Guidelines; the obscenity charges both dropped
and pending against him; his attempt to use a victim’s identity to
obtain $50,000 in credit from American Express; the hardships
imposed on victims of identity theft; his theft of $50,000 from his
mother and the resulting hardship on her; his having been charged
with only three counts, despite having committed numerous separate
mail-fraud and money-laundering offenses and that he could have
been charged with many separate theft offenses under state law; and
the likelihood of recidivism based on his criminal history. The
district court did not abuse its discretion in deciding to depart
upward. Its reasons for doing so advanced the objectives set forth
in 18 U.S.C. § 3553(a)(2), were authorized by § 3553(b), and were
justified by the facts of the case. See United States v. Saldana,
427 F.3d 298, 310 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005).
With regard to the upward deviation, pursuant to United States
v. Booker, 543 U.S. 220 (2005) (Guidelines only advisory), the
district court properly calculated the post-departure Guideline
range of imprisonment and explained in detail, both orally and in
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its written reasons for judgment, why it was imposing the sentence.
See Smith, 440 F.3d at 708. The court’s written reasons, as well
as those articulated at sentencing, reflect appropriate concern for
“the nature and circumstances of the offense and the history and
characteristics of the defendant”, as required by § 3553(a)(1).
The extent of the upward deviation advances the objectives of §
3553(a)(2) in that it reflects the seriousness of Thomas’s crimes
against the victims, protects the public from further crimes by
Thomas, and affords adequate deterrence to criminal conduct. See
§ 3553(a)(2)(A)-(C). The district court appropriately considered
factors that both receive insufficient weight under the Guidelines
and reflect the concerns of 18 U.S.C. § 3553(a). See Smith, 440
F.3d at 708; U.S.S.G. § 5K2.0 (allowing departures for factors not
adequately considered by Guidelines). Therefore, the sentence is
not unreasonable under Booker.
AFFIRMED
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