United States v. Thompson ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 2, 2007
No. 06-31241
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SCOTT MICHAEL THOMPSON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:06-CR-60034-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Scott Michael Thompson appeals the 113 month sentence imposed
following his guilty plea conviction for two counts of possessing and passing
counterfeit obligations. Thompson argues that the district court erred in
considering impermissible factors as a basis for upwardly departing from the
advisory guidelines range of 27-33 months. Thompson also contends that the
district court failed to perform an incremental analysis when imposing the
upward departure and that his sentence is unreasonable.
*
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should not be published and is not precedent except under the limited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. 06-31241
Because Thompson did not object to the district court’s consideration of
impermissible factors, this argument is reviewed for plain error. See United
States v. Jones, 444 F.3d 430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006).
To the extent that the district court considered Thompson’s arrest record in
imposing the upward departure, the court plainly erred. See id. However,
Thompson does not show that the error affected his substantial rights because
the district court relied on other permissible factors in upwardly departing,
including prior convictions and the seriousness of Thompson’s criminal history.
See id. at 438. The record indicates that the district court would have imposed
the same upward departure even if the impermissible factor had not been
considered.
Although the district court did not perform an explicit incremental
analysis, the district court noted that the upward departure reflected an increase
of 12 offense levels. The court specifically stated that its reason for departing
was the seriousness of Thompson’s criminal history. The court further stated
that a higher offense level might be warranted and that any lesser sentence
would be unreasonable. As such, Thompson’s “case does not fall into the narrow
range of cases where explicit detail is required regarding the district court’s
rejection of the intervening” offense levels. United States v. Gonzalez-Zuniga,
___ F.3d ___, No. 06-41030, 2007 WL 1289984, *1 (5th Cir. May 2, 2007). This
argument is without merit.
“An upward departure by a district court is not an abuse of discretion if
the court’s reasons for departing 1) advance the objectives set forth in 18 U.S.C.
§ 3553(a)(2) and 2) are justified by the facts of the case.” United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006)
(internal quotation marks and citation omitted). Thompson’s upward departure
meets those criteria. The extent of the departure is reasonable. See United
States v. Smith, 417 F.3d 483, 491-92 (5th Cir. 2005).
Accordingly, the judgment of the district court is AFFIRMED.
2