United States v. Day

200 F. App'x 371

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 21, 2006
• Docket: 06-60282
• Status: Unpublished

Opinion

PER CURIAM: *

Milton Day appeals the 120-month sen tence 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 States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, - U.S. -, 126 S.Ct. 2958, 165 L.Ed.2d 970 (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, - U.S. -, 126 S.Ct. 713, 163 L.Ed.2d 543 (2005).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.