     Case: 09-50914     Document: 00511578190         Page: 1     Date Filed: 08/22/2011




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

                                                                            FILED
                                                                          August 22, 2011
                                     No. 09-50914
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TYRA ARNETT GREEN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CR-48-2


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Tyra Arnett Green appeals her 60-month sentence for conspiracy to
commit wire fraud and wire fraud, a sentence two times greater than the
guidelines maximum of 30 months. She did not object to the sentence in the
district court.
        Green asserts that the district court erred by failing to provide sufficient
reasons for the above-guidelines sentence. The court noted during sentencing
Green’s extensive criminal history and found explicitly that the 60-month

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50914   Document: 00511578190      Page: 2   Date Filed: 08/22/2011

                                  No. 09-50914

sentence was required to protect the public from further crimes by her. The
written statement of reasons provided that the sentence was imposed in part
because of a “government motion for a sentence outside of the advisory guideline
system.” However, the record does not reflect that such a motion was made. The
statement of reasons further provided that the sentence was necessary because
of the nature and circumstances of the offense and the history and
characteristics of the defendant, as well as to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense,
afford adequate deterrence, and protect the public from further crimes by Green.
      We need not decide whether the district court’s reasons were sufficient.
Assuming arguendo that the reasons provided were insufficient, Green has not
shown that the error affected her substantial rights. She asserts that, had the
district court considered all of the 18 U.S.C. § 3553(a) factors, it “may have
imposed a lesser sentence.” The case she cites in support of finding that her
substantial rights were affected, United States v. Phillips, 415 F. App’x 557 (5th
Cir. 2011), is inapposite. There is nothing in the instant record to suggest that
the district court mistakenly imposed the 60-month sentence. See id. at 559.
      Nor does anything in the record suggest that the district court would have
imposed a lesser sentence if it had expressly considered each of the § 3553(a)
factors. During the sentencing hearing, the court reprimanded Green for her
lack of remorse toward the 89-year-old victim. It also recognized that 51-year-
old Green had been committing crimes since she was 17 and noted that her
“criminal history constitutes nine pages of the presentence report.” Considering
the record as a whole, it is equally plausible that the district court would have
imposed a harsher sentence if it had explicitly considered each of the relevant
sentencing factors. See § 3553(a); United States v. Mondragon-Santiago, 564
F.3d 357, 364 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Thus Green fails to
show that any error by the district court amounts to plain error.             See
Mondragon-Santiago, 564 F.3d at 364-65.

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                                 No. 09-50914

      Next Green asserts that the sentence was substantively unreasonable
because it was based in part upon a non-existent motion by the Government for
an upward departure. A sentence is substantively 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.” United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007) (internal quotation marks and citation
omitted). We find no error because the record does not indicate that the district
court gave “significant” weight to the nonexistent motion in determining Green’s
sentence. The court did not mention the improper factor during the sentencing
hearing; instead it emphasized the need for the sentence to protect the public in
light of Green’s lengthy criminal history. Nor does the record support a finding
that Green’s substantial rights were violated. It does not indicate that the
district court would have imposed a lesser sentence in the absence of a belief
that the Government had moved for a nonguidelines sentence. See Peltier, 505
F.3d at 393-94.
      The judgment of the district court is AFFIRMED.




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