United States v. Day

* 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this opinion should not be published and is not precedent except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
September 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60282
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON DAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:05-CR-104-ALL
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Before REAVLEY, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Milton Day appeals the 120-month sentence he received
following his guilty-plea conviction for credit card fraud and
identity theft. Day argues for the first time on appeal that
the extent of the district court’s “upward departure” was
unreasonable because the sentence failed to advance 18 U.S.C.
§ 3553(a)’s factors and was not justified by the facts of the
case.
Day fails to meet his burden of showing that the district
court’s non-guidelines sentence, which was imposed after United

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No. 06-60282
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States v. Booker, 543 U.S. 220 (2005), and which was an upward
deviation from the guidelines range of imprisonment, was error,
plain or otherwise. See United States v. Jones, 444 F.3d 430,
434-36 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006); United
States v. Smith, 440 F.3d 704, 707-10 (5th Cir. 2006); United
States v. Smith, 417 F.3d 483, 491-93 (5th Cir.), cert. denied,
126 S. Ct. 713 (2005).
AFFIRMED.

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