                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 5, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-50199
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID ALAN SMITH,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 1:05-CR-152-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     David Alan Smith pleaded guilty, without a plea agreement,

to all five counts of the indictment charging him with mail

fraud; making a false claim against the United States; unlawful

use of a means of identification; interstate transportation of

stolen property; and money laundering.   The district court

imposed a non-guideline sentence, varying from the guideline

range of 41-51 months, of 60 months of imprisonment on counts 1

and 2, 120 months of imprisonment on counts 3-5, all to run



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this opinion should not be published and is not precedent except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

concurrently, and three years of supervised release on all

counts.

     Smith appeals his sentence, arguing that his sentence is

unreasonable because the district court failed to consider

whether the aggravating factors it cited were adequately

addressed by the advisory Sentencing Guidelines.   He contends

that the district court also failed to account for several

mitigating factors.   Smith argues that although the district

court cited the seriousness of the offense as a basis for

variance, the seriousness of a given offense is addressed by the

Guidelines.   He contends that the district court did not explain

why the Guideline for his offense, with its aggravating

adjustments, was not adequate in his case.

     The district court adequately explained its reasons and did

not err in considering the seriousness of the offense and the

need to promote respect for the law in deciding to impose a non-

guideline sentence.   See United States v. Clements, 188 F. App’x

267, 271 (5th Cir. 2006).

     Smith also argues that the district court failed to explain

why the Guidelines could not account for his criminal history.

He also argues that the district court should have applied the

policy statement in U.S.S.G. § 4A1.3 and should have departed in

a structured manner based on his criminal history.

     The district court’s sentence does not take into account an

improper or irrelevant factor.   Criminal history is one of the
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                                -3-

factors that a district court may consider in imposing a non-

guideline sentence, and consideration of convictions not

accounted for by the Guidelines is appropriate.     United States v.

Smith, 440 F.3d 704, 709 (5th Cir. 2006).   Nothing in Smith

suggests that a district court must depart under § 4A1.3 rather

than impose a non-guideline sentence based on inadequate criminal

history.   See Smith, 440 F.3d at 707-09.

     Smith argues that given the extent of variance, which he

considers to be excessive, the district court’s reasons for

imposing a non-guideline sentence were not sufficient.    The

district court gave a detailed explanation for imposing a non-

guideline sentence based upon proper factors.     See Smith, 440

F.3d at 710.   The extent of departure, in and of itself, is not a

basis for holding that a non-guideline sentence is unreasonable.

United States v. Reinhart, 442 F.3d 857, 864 (5th Cir.), cert.

denied, 127 S. Ct. 131 (2006).

     Smith argues that the district court failed to account for

significant mitigating factors under 18 U.S.C. § 3553(a).    He

cites his attempts to lead a straight life, his motive for these

offenses, his age and health, and Congress’s goal of preventing

unwarranted disparity in sentencing.

     It is apparent from the district court’s statements at

sentencing that the district court did not believe that Smith had

attempted to go straight or that his latest crime was an
                            No. 06-50199
                                 -4-

aberration prompted by an admirable motive.   Smith did not raise

his age or health as mitigating factors in the district court.

     The district court’s reasons for imposing sentence

demonstrate that any disparity between Smith’s sentence and other

defendants would not be unwarranted.   See Smith, 440 F.3d at 709.

The district court properly calculated and considered the

guideline range, gave permissible reasons for variance, and its

reasons demonstrate that the sentence imposed is reasonable under

§ 3553(a).   See Smith, 440 F.3d at 710.

     Smith argues that on the date he committed this offense, the

guideline range was mandatory and that the maximum sentence he

could receive was that provided for under the Guidelines.    He

contends that the remedial portion of Booker’s holding, which

made the Guidelines advisory, may not be applied in his case

without violating the Ex Post Facto and Due Process Clauses of

the Constitution.   Smith acknowledges that this court’s opinion

in United States v. Scroggins, 411 F.3d 572 (5th Cir. 2005)

rejected his argument, but he raises it to preserve it for

further review.

     Smith was warned of the statutory maximum to which he was

exposed at the time he entered his guilty plea.   Smith has not

shown that the district court erred in sentencing him under

Booker’s remedial scheme.   See United States v. Austin, 432 F.3d

598, 599 (5th Cir. 2005).

     Smith’s sentence is AFFIRMED.
