United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2007
Charles R. Fulbruge III
Clerk
No. 06-50199
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ALAN SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-152-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Alan Smith pleaded guilty, without a plea agreement,
to all five counts of the indictment charging him with mail
fraud; making a false claim against the United States; unlawful
use of a means of identification; interstate transportation of
stolen property; and money laundering. The district court
imposed a non-guideline sentence, varying from the guideline
range of 41-51 months, of 60 months of imprisonment on counts 1
and 2, 120 months of imprisonment on counts 3-5, all to run
*
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this opinion should not be published and is not precedent except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. 06-50199
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concurrently, and three years of supervised release on all
counts.
Smith appeals his sentence, arguing that his sentence is
unreasonable because the district court failed to consider
whether the aggravating factors it cited were adequately
addressed by the advisory Sentencing Guidelines. He contends
that the district court also failed to account for several
mitigating factors. Smith argues that although the district
court cited the seriousness of the offense as a basis for
variance, the seriousness of a given offense is addressed by the
Guidelines. He contends that the district court did not explain
why the Guideline for his offense, with its aggravating
adjustments, was not adequate in his case.
The district court adequately explained its reasons and did
not err in considering the seriousness of the offense and the
need to promote respect for the law in deciding to impose a non-
guideline sentence. See United States v. Clements, 188 F. App’x
267, 271 (5th Cir. 2006).
Smith also argues that the district court failed to explain
why the Guidelines could not account for his criminal history.
He also argues that the district court should have applied the
policy statement in U.S.S.G. § 4A1.3 and should have departed in
a structured manner based on his criminal history.
The district court’s sentence does not take into account an
improper or irrelevant factor. Criminal history is one of the
No. 06-50199
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factors that a district court may consider in imposing a non-
guideline sentence, and consideration of convictions not
accounted for by the Guidelines is appropriate. United States v.
Smith, 440 F.3d 704, 709 (5th Cir. 2006). Nothing in Smith
suggests that a district court must depart under § 4A1.3 rather
than impose a non-guideline sentence based on inadequate criminal
history. See Smith, 440 F.3d at 707-09.
Smith argues that given the extent of variance, which he
considers to be excessive, the district court’s reasons for
imposing a non-guideline sentence were not sufficient. The
district court gave a detailed explanation for imposing a non-
guideline sentence based upon proper factors. See Smith, 440
F.3d at 710. The extent of departure, in and of itself, is not a
basis for holding that a non-guideline sentence is unreasonable.
United States v. Reinhart, 442 F.3d 857, 864 (5th Cir.), cert.
denied, 127 S. Ct. 131 (2006).
Smith argues that the district court failed to account for
significant mitigating factors under 18 U.S.C. § 3553(a). He
cites his attempts to lead a straight life, his motive for these
offenses, his age and health, and Congress’s goal of preventing
unwarranted disparity in sentencing.
It is apparent from the district court’s statements at
sentencing that the district court did not believe that Smith had
attempted to go straight or that his latest crime was an
No. 06-50199
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aberration prompted by an admirable motive. Smith did not raise
his age or health as mitigating factors in the district court.
The district court’s reasons for imposing sentence
demonstrate that any disparity between Smith’s sentence and other
defendants would not be unwarranted. See Smith, 440 F.3d at 709.
The district court properly calculated and considered the
guideline range, gave permissible reasons for variance, and its
reasons demonstrate that the sentence imposed is reasonable under
§ 3553(a). See Smith, 440 F.3d at 710.
Smith argues that on the date he committed this offense, the
guideline range was mandatory and that the maximum sentence he
could receive was that provided for under the Guidelines. He
contends that the remedial portion of Booker’s holding, which
made the Guidelines advisory, may not be applied in his case
without violating the Ex Post Facto and Due Process Clauses of
the Constitution. Smith acknowledges that this court’s opinion
in United States v. Scroggins, 411 F.3d 572 (5th Cir. 2005)
rejected his argument, but he raises it to preserve it for
further review.
Smith was warned of the statutory maximum to which he was
exposed at the time he entered his guilty plea. Smith has not
shown that the district court erred in sentencing him under
Booker’s remedial scheme. See United States v. Austin, 432 F.3d
598, 599 (5th Cir. 2005).
Smith’s sentence is AFFIRMED.