United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 16, 2007
Charles R. Fulbruge III
Clerk
No. 06-50853
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS WAYNE HATCHETT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-532-3
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Douglas Wayne Hatchett appeals the sentence imposed after
he pleaded guilty to aiding and abetting bank fraud in violation
of 18 U.S.C. §§ 2, 1344. Hatchett’s offense conduct was part of
a larger scheme to defraud banks and retailers in Texas that
involved fraudulent check-writing and the assumption of false
identities.
The presentence report set Hatchett’s guideline range at 51
to 63 months of imprisonment, but the district court upwardly
*
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this opinion should not be published and is not precedent except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. 06-50853
-2-
departed pursuant to § 5K2.0 and § 2B1.1 of the Guidelines and
sentenced Hatchett to 120 months of imprisonment.
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
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.
Because the district court upwardly departed pursuant to
§ 5K2.0 of the Guidelines, Hatchett’s sentence is a “guideline
sentence,” and the decision to depart is reviewed for abuse of
discretion. See id. at 707; see also United States v. Simkanin,
420 F.3d 397, 415-16 (5th Cir. 2005), cert. denied, 126 S. Ct.
1911 (2006). “A sentencing court does not abuse its discretion
in deciding to upwardly depart when its reasons for doing so
(1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2);
(2) are authorized by 18 U.S.C. § 3553(b); and (3) are justified
by the facts of the case.” United States v. Saldana, 427 F.3d
298, 310 (5th Cir. 2005) (footnotes omitted), cert. denied,
126 S. Ct. 1097 (2006).
Hatchett’s first argument is predicated on a misreading of
Booker. Hatchett claims that the district court violated the
rule that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized
No. 06-50853
-3-
by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 543 U.S. at 244. The district
judge’s fact-finding was proper because “with the mandatory use
of the Guidelines excised, the Sixth Amendment will not impede a
sentencing judge from finding all facts relevant to sentencing.”
United States v. Mares, 402 F.3d 511, 519 (5th Cir.) (citing
Booker, 543 U.S. at 233, 259), cert. denied, 126 S. Ct. 43
(2005).
Hatchett also argues that the upward departure was
unreasonable because the district court’s statements at the
sentencing hearing and in its written statement of reasons
regarding participants in the fraud scheme dressing up like
military personnel in order to facilitate their crimes are not
supported by the record. While the record does not show that the
scheme involved “dressing up” like military personnel, Hatchett
never denied that such activity occurred, and he did not object
to the court’s statements below. In addition, the record shows
that military identification devices were created and used as
part of the fraud scheme. The court’s finding of fact was not
clearly erroneous. See Smith, 440 F.3d at 706. Nor were its
reasons for upwardly departing unreasonable, as they are
“justified by the facts of the case.” See Saldana, 427 F.3d at
310.
No. 06-50853
-4-
Finally, Hatchett argues that the district court’s reasons
for upwardly departing were “patently unreasonable” because the
district court held him responsible “for blowing up the Oklahoma
City Federal Building before the superseding indictment’s
timeframe” and “for blowing up the Sears Tower when it has not
yet been blown up.” The district court never held Hatchett
responsible for these explosive scenarios but mentioned them to
illustrate the danger presented by the methods of those involved
in Hatchett’s fraud scheme. In addition, the court pointed to
the commentary to § 2B1.1, which specifically contemplates that
an upward departure may be warranted where, as here, “[t]he
offense caused substantial harm to the victim’s reputation or
credit record, or the victim suffered a substantial inconvenience
related to repairing the victim’s reputation or a damaged credit
record” or where “[a]n individual whose means of identification
the defendant used to obtain unlawful means of identification
is erroneously arrested.” § 2B1.1 cmt. n.19(A)(vi)(I) and (II).
One of Hatchett’s victims suffered both these indignities.
Accordingly, the court’s decision to depart was not unreasonable.
See Smith, 440 F.3d at 706-07.
AFFIRMED.