     Case: 10-60720 Document: 00511461471 Page: 1 Date Filed: 04/29/2011




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

                                                 FILED
                                                                            April 29, 2011
                                     No. 10-60720
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DEBRA JOAN CLAY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 1:09-CR-137-3


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Debra Joan Clay appeals the 48-month sentence imposed following her
guilty plea to using access devices issued to other persons in violation of
18 U.S.C. § 1029(a)(5). Clay does not challenge the procedural correctness of her
sentence; therefore, we will proceed to an examination of its substantive
reasonableness. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
We will assume, arguendo, that Clay sufficiently preserved her challenge for



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60720 Document: 00511461471 Page: 2 Date Filed: 04/29/2011

                                  No. 10-60720

appeal. Accordingly, we will apply the abuse of discretion standard. See United
States v. Pelitier, 505 F.3d 389, 391 (5th Cir. 2007).
      “This court recognizes three types of sentences[.]” Brantley, 537 F.3d at
349. A district court may impose (1) a sentence within the defendant’s
Guidelines range, (2) an upward or downward departure as allowed by the
Guidelines, or (3) a non-Guideline sentence or a variance that is outside of the
relevant Guidelines range. Id.
      Clay argues that the district court chose the “second category” and
upwardly departed under U.S.S.G. § 4A1.3.            She further argues that the
departure was unwarranted and that the extent of the departure was
unreasonable because the nature of her prior offenses was nonviolent, very
minor economic offenses, which involved “victimless crimes.”
      “[A]n upward departure and an upward variance are not one and the
same.” United States v. Jacobs,    F.3d       , No. 10-20043, 2011 WL 873549, at *3
(5th Cir. Mar. 15, 2001). A “departure” refers only to a sentence imposed under
the framework set out in the Guidelines. Id. at *2. “When the district court
imposes an upward departure, it must explain its reasons for doing so in
Section V of the standard-form Statement of Reasons.” Id. In contrast, a
“variance” is a sentence imposed outside the Guidelines framework.           Id. A
district court explains its reasons for imposing a variance in Section VI of the
Statement of Reasons. Id.
      Although the district court at times used the term “departure” at the
sentencing hearing, the court’s comments, viewed as a whole, and its written
Statement of Reasons, clearly reflect that it was imposing a sentence which
represented a variance under 18 U.S.C. § 3553(a) rather than an upward
departure. Where the district court has imposed a sentence that varies from the
Guidelines range, reasonableness review requires this court to evaluate whether
the sentence “unreasonably fails to reflect the statutory sentencing factors” set
forth at § 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). A

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                                  No. 10-60720

sentence outside the Guidelines is unreasonable if it “(1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors.” Id.
      The district court determined that a variance was justified by Clay’s
uncounted criminal convictions and her continued illegal activities. The court
also specifically cited several of the § 3553(a) factors which it considered
relevant. The district court thus made an “individualized assessment based on
the facts presented” and concluded that the advisory Guidelines range gave
insufficient weight to some of the sentencing factors. See United States v.
Williams, 517 F.3d 801, 809 (5th Cir. 2008). Because the court cited fact-specific
reasons for imposing a non-Guideline sentence and its reasons adequately
reflected consideration of the § 3553(a) factors, the sentence was reasonable and
will not be disturbed. See Brantley, 537 F.3d at 349-50.
      AFFIRMED.




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