     Case: 09-30583     Document: 00511118519          Page: 1    Date Filed: 05/21/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 21, 2010
                                     No. 09-30583
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SHANDOLYN D. THOMAS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-94-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Shandolyn D. Thomas appeals the 33-month sentence imposed after her
guilty plea conviction for one count of mail fraud in violation of 18 U.S.C. § 1341.
The district court upwardly departed from criminal history category I to category
IV, and Thomas’s guideline range of imprisonment of 15 to 21 months increased
with the upward departure to 27 to 33 months. Thomas argues that the district
court improperly based its decision to depart on her arrest record and on her
violations of the conditions of her pretrial release.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30583   Document: 00511118519 Page: 2        Date Filed: 05/21/2010
                                No. 09-30583

      A district court incorrectly applies the Guidelines by basing a departure
upon a factor that the Sentencing Commission “has expressly rejected as an
appropriate ground for departure.” Williams v. United States, 503 U.S. 193, 200
(1992). Under U.S.S.G. § 4A1.3(a)(3), a “prior arrest record itself shall not be
considered for purposes of an upward departure.” Because the district court
departed based, in part, on Thomas’s prior arrests apart from reliable evidence
that Thomas was guilty of the offenses for which she was arrested, the court
erred. See United States v. Jones, 444 F.3d 430, 434-36 (5th Cir. 2006).
      However, we have held, after Gall v. United States, 552 U.S. 38 (2007),
that “[n]ot all errors in determining a defendant’s guideline sentence require
reversal.” United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008), cert.
denied, 129 S. Ct. 904 (2009). As in Bonilla and United States v. Duhon, 541
F.3d 391, 396 (5th Cir. 2008), neither party has taken issue—in the district court
or on appeal—with the guideline range of 15 to 21 months calculated by the
district court prior to its upward departure. The district court explained that it
would have imposed the same 33-month prison term as a “variant sentence”
even if it “erred in using the guidelines to have an upward departure.” In
support of that ruling, the court recited in lengthy detail such Section 3553(a)
factors as the nature and circumstances of Thomas’s offense, her history and
characteristics, her repeated violations of the terms of her supervised release,
the need for deterrence, the need to promote respect for the rule of law, and the
need to provide Thomas with training and treatment. Therefore, Thomas’s
sentence did not “result from” an incorrect application of the Guidelines, and
reversal is not required. See Bonilla, 524 F.3d at 656-57.
      AFFIRMED.




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