United States v. Smith

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 6, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20646
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMINATA SMITH, also known as ATA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-196-2
--------------------
Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Aminata Smith pleaded guilty to conspiracy to commit
marriage fraud in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I).
Smith now appeals her 51-month sentence, arguing that the
sentence is unreasonable.
The district court properly calculated Smith’s advisory
range of imprisonment under U.S.S.G. § 2L2.1(b)(2)(C), at 33 to
41 months, which reflected a three-level downward adjustment for
acceptance of responsibility. The district court then departed
upwardly two levels pursuant to U.S.S.G. § 2L1.1, comment. (n.5),

-- 1 of 2 --

No. 06-20646
-2-
because the offense involved substantially more than 100
documents.
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. Zuniga-Peralta, 442 F.3d
345, 347 (5th Cir. 2006); see also United States v. Simkanin,
420 F.3d 397, 416 n.21 (5th Cir. 2005) (finding that a district
court “abuses its discretion if it departs on the basis of
legally unacceptable reasons or if the degree of the departure is
unreasonable”). The upward departure imposed by the district
court meets those criteria. Further, the extent of the
departure, 10 months longer than the high end of the guidelines
range, is also reasonable. See e.g., United States v. Smith, 417
F.3d 483, 492-93 (5th Cir.), cert. denied, 126 S. Ct. 713 (2005).
The judgment of the district court is AFFIRMED.

-- 2 of 2 --