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

                                                 FILED
                                                                           January 4, 2010
                                     No. 09-30056
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TANYA MARIE SMITH,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 3:07-CR-30037-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Tanya Marie Smith of conspiring to possess firearms by
convicted felons, being a felon in possession of firearms, and possessing a short-
barreled shotgun not registered to her, as charged in Counts 1, 2, and 4 of the
indictment, respectively. Over Smith’s objection, the district court calculated her
sentencing range based on the base offense level for second degree murder,
pursuant to the “cross reference” provision of U.S.S.G. § 2K2.1(c)(1)(B). Because
the advisory guidelines range was higher that the statutory maximums for the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30056

offenses, the court sentenced Smith to the statutory maximums, 60 months on
Count 1 and 120 months on Counts 2 and 4, to run consecutively.
      Smith challenges the sufficiency of the evidence to support her convictions
on Counts 1 and 4.      She argues that the Government failed to prove an
agreement to support her conspiracy conviction and failed to prove that she
possessed the shotgun. Because she raised these arguments in her motions for
judgment of acquittal, review is de novo. See United States v. Percel, 553 F.3d
903, 910 (5th Cir. 2008), cert. denied, 129 S. Ct. 2065 and 2067 (2009). There
was evidence that Smith and Dennis Clem, both convicted felons, drove around
Bastrop, Louisiana, with the shotgun and other firearms under a blanket on the
floorboard behind the front seat. Smith was usually the driver of the vehicle and
one day accompanied Clem and another man when they took the shotgun and
other firearms from vehicle and shot them on some land. Viewed in the light
most favorable to the verdict, a reasonable jury could conclude both that Smith
agreed to violate the law prohibiting her and Clem from possessing firearms, see
United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002), and that she
constructively possessed the shotgun, see United States v. Knezek, 964 F.2d 394,
400 (5th Cir. 1992).
      Smith asks this court to review the sufficiency of the evidence to support
her conviction on Count 2, but provides no further argument. She has thus
abandoned this issue. See United States v. Stalnaker, 571 F3d 428, 433 (5th Cir.
2009). Moreover, the evidence that supports the possession element of her
conviction on Count 4 supports the possession element of her conviction on
Count 2.
      With regard to her sentence, Smith challenges the district court’s finding
that it was credible that Crystal Harrell called Smith before the doomed police
officers arrived at Smith and Clem’s hotel room. Our review of the record
reveals that this finding is plausible in light of the record as whole. See United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). To the extent

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this finding is based on double hearsay, Smith has not shown that the evidence
regarding the phone call was unreliable or untrue. See U.S.S.G. § 6A1.3(a), p.s.,
comment. (noting that the sentencing court may consider “reliable hearsay”);
United States v. Rodriguez, 62 F.3d 723, 725 n.9 (5th Cir. 1995) (same). Thus,
she has not shown the district court erred in considering the information.
      Smith asserts, without further argument, that applying the factors set
forth in 18 U.S.C. § 3553(a) to determine the reasonableness of the sentence
imposed, her “sentence is clearly excessive.” Smith did not object specifically to
the substantive reasonableness of the sentence, and thus, review is for plain
error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
The sentence imposed on each count of conviction is within the properly
calculated guidelines range and, thus, is presumptively reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Further, the record indicates
that the district court made an individualized sentencing decision based on the
facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at
49-50. Smith has not overcome the presumption of reasonableness and has not
shown that the district court plainly erred in determining that the sentences
imposed would satisfy the goals of § 3553(a).
      AFFIRMED.




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