United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-10731
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONSTANCE PARKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-148-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Constance Parker appeals the sentence imposed following her
guilty plea to bank larceny. She argues for the first time on
appeal that her non-guidelines sentence is unreasonable because
the district court impermissibly considered the facts that
(1) she was due a 26-month sentencing credit and (2) her federal
and Georgia sentences were required to run concurrently.
The record, however, does not support Parker’s
characterization of the district court’s ruling and instead
reveals that the district court imposed an upward departure
*
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this opinion should not be published and is not precedent except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. 06-10731
-2-
pursuant to U.S.S.G. § 4A1.3(a)(4)(B), a guidelines sentence,
based on a finding that Parker’s criminal history score was
under-represented. See United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006). Parker does not challenge the dispositive
sentencing issue before us, i.e., whether the district court’s
upward departure was reasonable in light of her criminal history.
See United States v. Saldana, 427 F.3d 298, 308 (5th Cir.), cert.
denied, 126 S. Ct. 810 (2005). She has therefore waived its
review. See United States v. Green, 964 F.2d 365, 371 (5th Cir.
1992). For the first time in her reply brief, Parker argues that
even if the district court did impose an upward departure, the
extent of that departure was both an abuse of discretion and
unreasonable. This argument is also waived, however, having not
been raised by Parker in her initial brief. See United States v.
Reinhart, 357 F.3d 521, 524 n.4 (5th Cir. 2004).
AFFIRMED.