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

                                                                    FILED
                                                                 December 18, 2007
                                No. 07-30401
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

KEITH RUSSART

                                            Defendant-Appellant


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:04-CR-80-2


Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Keith Russart appeals his 48-month sentence imposed following his guilty
plea conviction for use of a communication facility in committing and facilitating
the commission of a felony. Russart argues that the district court abused its
discretion in departing upward from the sentencing guidelines range based on
U.S.S.G § 5K2.1 and unreasonably deviated upward from the sentencing
guidelines range in imposing a non-guideline sentence.



      *
      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should not be published and is not precedent except under the limited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. 07-30401

      In light of Russart’s reckless conduct resulting in the death of an
individual and the fact that the applicable Guideline did not take the possibility
of a death into account, the district court did not abuse its discretion in
departing upward based on § 5K2.1. In departing up to the statutory maximum,
the district court also properly gave consideration to factors that met the
objectives of 18 U.S.C. § 3553(a), including Russart’s need for educational and
vocational training and alcohol and drug rehabilitation programs, his lack of
serious criminal history, and his recent drug use. United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir. 2006 ), cert. denied, 126 S. Ct. 2954 (2006).
      Assuming that the district court could also make a non-guidelines upward
deviation at sentencing, the district court properly considered the relevant
§ 3553(a) factors, as stated above, and did not give significant weight to
irrelevant factors.   The sentence imposed did not reflect a clear error in
judgment or an abuse of discretion by the district court and was reasonable
under the circumstance of the case. The sentence is AFFIRMED.




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