United States v. Clark ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-31017
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GAIL A. CLARK, also known as Gail A. Singleton,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CR-61-1
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Gail A. Clark appeals her 120-month sentence for possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Clark’s sentence included an upward departure from
Criminal History Category VI pursuant to U.S.S.G. § 4A1.3. Clark
argues that her sentence was unreasonable.
When a defendant appeals a sentence imposed pursuant to the
advisory guidelines scheme required by United States v. Booker,
543 U.S. 220 (2005), this court determines whether the 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this opinion should not be published and is not precedent except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.
No. 05-31017
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was reasonable. United States v. Smith, 440 F.3d 704, 706 (5th
Cir. 2006). The sentencing court’s factual findings are accepted
unless clearly erroneous, and the application of the Guidelines
is reviewed de novo. Id.
A sentence imposed “within a properly calculated Guidelines
range . . . is afforded a rebuttable presumption of
reasonableness.” Id. at 707. A sentencing court also “may
impose a sentence that includes an upward or downward departure
as allowed by the Guidelines.” Id. Because such a departure is
derived from the Guidelines, the sentence is a “guideline
sentence,” and the decision to depart and the extent of the
departure are both reviewed for abuse of discretion. Id.
The district court based its decision to upwardly depart on
permissible grounds including Clark’s prior convictions for
numerous offenses for which she was not assessed criminal history
points and numerous pending charges. See § 4A1.3(a)(2)(A), (D);
United States v. Simkanin, 420 F.3d 397, 416 n.21 (5th Cir.
2005), cert. denied, 126 S. Ct. 1911 (2006). In addition, the
district court considered the nature of Clark’s convictions, when
it remarked that Clark’s extensive criminal history was replete
with convictions for forgery, theft, and possession of a
controlled substance. See § 4A1.3, comment. (n.2(B)). This
court has stated that “drug crimes, and theft . . . pose an
obvious danger to society.” See United States v. Lee, 358 F.3d
315, 329 (5th Cir. 2004). Also, the district court’s comments
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reflect 18 U.S.C. § 3553(a)’s requirement to consider the
seriousness of the offense, the need for punishment, deterrence,
and protection from future crimes by Clark. Moreover, the degree
of the upward departure, which resulted in a guidelines range 14%
greater than Clark’s guidelines maximum, was reasonable. See
United States v. Smith, 417 F.3d 483, 492-93 (5th Cir.), cert.
denied, 126 S. Ct. 713 (2005); Simkanin, 420 F.3d at 416 n.21.
Accordingly, the district court’s upward departure was not an
abuse of discretion and Clark’s sentence was reasonable. See
Smith, 440 F.3d at 706. Clark’s sentence is affirmed.
AFFIRMED.