                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                                F I L E D
                                                                                                 June 11, 2007

                      IN THE UNITED STATES COURT OF APPEALS                                 Charles R. Fulbruge III
                                                                                                    Clerk
                                   FOR THE FIFTH CIRCUIT



                                            No. 06-10084
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                           Plaintiff-
                                                           Appellee,

                                                  versus

RANDALL B. MORROW, also known as Randy Morrow,

                                                                                         Defendant-
                                                           Appellant.

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                            Appeal from the United States District Court
                                  for the Northern District of Texas
                                     USDC No. 5:05-CR-95-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Randall B. Morrow appeals the 120-month sentence imposed following his guilty plea

conviction for engaging in monetary transactions derived from specified unlawful activity, aiding and

abetting. Morrow argues that the appeal waiver contained in his plea agreement does not bar this


       *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
appeal. Because the Government does not seek to enforce the appeal waiver, it is not binding on

Morrow, and this court will address the merits of his arguments. See United States v. Story, 439 F.3d

226, 230-31 (5th Cir. 2006).

        Morrow contends that the district court failed to provide notice of its intent to upwardly

depart from the advisory guidelines range, as required by FED. R. CRIM. P. 32(h). The district court

imposed a non-guidelines variance as opposed to an upward departure under the Guidelines. See

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United States v. Armendariz, 451 F.3d

352, 358 n.5 (5th Cir. 2006). Therefore, the district court was not required to give notice of its intent

to impose a non-guidelines sentence. See United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir.

2007), petition for cert. filed, 75 U.S.L.W. 3585 (U.S. Apr. 18, 2007) (No. 06-1381).

        Morrow also argues that his 120-month non-guidelines sentence is unreasonable. The district

court cited fact specific reasons for the imposition of Morrow’s sentence and addressed the factors

of 18 U.S.C. § 3553(a). See United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006).

Further, the court’s consideration of the vulnerability of the victims was not in error. See United

States v. Rajwani, 476 F.3d 243, 250 (5th Cir.), opinion modified, 479 F.3d 904 (2007). Because

the district court did not fail to account for a factor which should have received significant weight,

give significant weight to an improper factor, or make a clear error of judgment in balancing

sentencing factors, Morrow’s sentence is reasonable. See United States v. Smith, 440 F.3d 704, 707

(5th Cir. 2006). Accordingly, the judgment of the district court is AFFIRMED.




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