United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-10411
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SINH VAN TA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-28-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Sinh Van Ta appeals his five, consecutive 15-month sentences
imposed following the revocation of his supervised release for
five prior convictions. The Government has moved for dismissal
of the appeal or for summary affirmance on the ground that this
court lacks jurisdiction to consider Ta’s appeal under 18 U.S.C.
§ 3742(a)(4). Because Ta’s challenge to his sentence lacks
merit, we decline to consider this issue. See United States v.
Weathersby, 958 F.2d 65, 66 (5th Cir. 1992). The Government’s
motion for dismissal of the appeal or for summary affirmance is
*
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this opinion should not be published and is not precedent except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. 06-10411
-2-
therefore denied. The Government’s alternative request for an
extension of time to file an appeal brief is denied as
unnecessary.
Ta argues that, because the district court based its
decision to upwardly depart on his bribery attempt, a fact
neither found by a jury nor admitted by Ta, his sentence
contravenes the principles set forth in United States v. Booker,
543 U.S. 220 (2005). For the same reason, Ta also asserts that
the district court improperly considered the bribery attempt in
its decision to upwardly depart from the recommended guidelines
range.
After Booker, “[t]he sentencing judge is entitled to find by
a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range.” United States v.
Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Ta was sentenced in April 2006 after the Supreme Court
issued its ruling in Booker. Hence, the district court did not
commit error by considering Ta’s bribery attempt at sentencing on
the revocation of his supervised release. See Mares, 402 F.3d at
519.
Ta also argues that the extent of the district court’s
upward departure from three to nine months of imprisonment for
each count to 15 months of imprisonment for each count was
unreasonable. The imposed sentences, while in excess of the
range indicated by the U.S.S.G. § 7B1.4(a) policy statement, were
No. 06-10411
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within the statutory maximum term of imprisonment. See 18 U.S.C.
§ 3583(e)(3). Ta thus has not shown that his sentence as to each
count was either unreasonable or plainly unreasonable. See
United States v. Hinson, 429 F.3d 114, 119-20 (5th Cir. 2005),
cert. denied, 126 S. Ct. 1804 (2006); United States v. Gonzales,
250 F.3d 923, 925-29 (5th Cir. 2001).
Further, a review of the record demonstrates that the
district court considered the relevant sentencing factors. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006);
18 U.S.C. § 3553(a). Accordingly, Ta’s revocation of supervised
release and sentence are affirmed.
AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;
ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY.