                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 21, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-60282
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MILTON DAY,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                    USDC No. 2:05-CR-104-ALL
                      --------------------

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

     *
       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this opinion should not be published and is not precedent except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. 06-60282
                                -2-

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.
