     Case: 08-30776     Document: 00511535396         Page: 1     Date Filed: 07/11/2011




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

                                                                            FILED
                                                                            July 11, 2011
                                     No. 08-30776
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KERYN GOYNES, also known as Keryn White,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-120-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Keryn Goynes appeals her conviction and sentence on three counts of
making false statements to a bank and credit union. The original guidelines
sentencing range was 70 to 87 months.                 The district court granted the
Government’s motion for a downward departure based on substantial assistance.
However, the court ultimately determined that the criminal history category
inadequately reflected the seriousness of the crime and the likelihood that
Goynes would commit more fraud crimes. The court therefore also departed

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                    No. 08-30776

upward under the § 4A1.3(a) of the Sentencing Guidelines to impose a sentence
of 120 months.
      Goynes first asserts that the district court did not give adequate notice of
the possibility of an upward departure as required by Federal Rule of Criminal
Procedure 32(h). We review this claim for plain error because Goynes did not
object to any lack of notice. See United States v. Davenport, 286 F.3d 217, 219
(5th Cir. 2002). To establish reversible plain error, Goynes must first show a
clear or obvious error that affected her substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If she does so, we have the discretion to
correct the error if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
      “Before [a sentencing] court may depart from the applicable sentencing
range on a ground not identified for departure either in the presentence report
or in a party’s prehearing submission, the court must give the parties reasonable
notice that it is contemplating such a departure.” FED. R. CRIM. P 32(h). The
notice requirement was satisfied by information contained in the presentence
report. See Davenport, 286 F.3d at 219-20; see Rule 32(h). This contention does
not entitle Goynes to relief.
      In her second claim, Goynes contends that the court should not have
imposed an upward departure after having granted a downward departure. She
thus contends that the upward departure was unreasonable. Review is for plain
error because there was no objection to the departure or to the reasonableness
of the sentence. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009).
      Although it is rare for a court to grant both upward and downward
departures, “a net increase [in a sentence] cannot be characterized as a
misapplication of the guidelines where both upward and downward departures
are granted.” United States v. Pennington, 9 F.3d 1116, 1119 (5th Cir. 1993).
Moreover, a district court’s decision whether and by how much to deviate is

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                                  No. 08-30776

entitled to great deference. See Gall v. United States, 552 U.S. 38, 51-52 (2007).
That we might reasonably have imposed a different sentence “is insufficient to
justify reversal of the district court.” Id. at 51. The record supports the district
court’s conclusion that “in spite of being given every opportunity, [Goynes was]
determined to engage in . . . financially predatory conduct,” and she “would do
it again.” Goynes was first convicted of bank fraud in 1995 and thereafter has
shown a dangerous propensity to commit similar crimes, even while on
supervised release. Her history therefore supported an upward departure. See
United States v. DeLuna-Trujillo, 868 F.2d 122, 124-25 (5th Cir. 1989); United
States v. Roberson, 872 F.2d 597, 606 n. 8 (5th Cir.1989) (citing United States v.
Fisher, 868 F.2d 128, 130 (5th Cir. 1989)). The upward departure was not
plainly erroneous or an abuse of discretion. See Gall, 552 U.S. at 46; Rita v.
United States, 551 U.S. 338, 351 (2007).
      In her third contention, Goynes contends that the Government breached
the plea agreement by refusing to argue for an offense-level reduction for
acceptance of responsibility. This claim is subject to plain-error review because
the claim of a breach was not raised in the district court. See Puckett, 129 S. Ct.
at 1429-33 & n.4.
      The plea agreement required the Government to move for a one-level
reduction for acceptance of responsibility under § 3E1.1(b) only if the district
court found that Goynes qualified for the two-level reduction provided by
§ 3E1.1(a). Moreover, the third-level reduction was not even possible unless
Goynes qualified for the initial two-level reduction.       See United States v.
Andino-Ortega, 608 F.3d 305, 312 (5th Cir. 2010). The district court found that
Goynes was not entitled to the prerequisite two-level reduction because she
attempted to cash a forged check while on supervised release. Because the
district court did not find that Goynes was entitled to the two-level reduction,
the Government was neither required nor able to move for the third level of



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                                   No. 08-30776

reduction. Moreover, the Government did not promise either to recommend the
prerequisite two-level reduction or not to oppose it. This claim lacks merit.
      In her fourth claim, Goynes asserts that prior bank fraud convictions used
to calculated her criminal history are invalid in light of Skilling v. United States,
130 S. Ct. 2896 (2010).      Because Goynes does not contend that her prior
convictions were obtained without benefit of counsel in violation of Gideon v.
Wainwright, 372 U.S. 335 (1963), any attempt to attack those convictions during
this appeal is barred. See United States v. Longstreet, 603 F.3d 273, 276-77 (5th
Cir. 2010) (citing Custis v. United States, 511 U.S. 485 (1994)). Moreover,
Goynes fails to show how Skilling, which addressed the fraudulent deprivation
of “honest services,” has any relevance to her prior crimes, which involved simple
monetary fraud. This claim warrants no relief.
      In her final contention, Goynes seeks application of a recent guideline
amendment that eliminated the two criminal history points previously awarded
for crimes committed within two years of release from imprisonment for a prior
offense. Amendment 742, U.S.S.G. App. C., 354-56, eliminated the two “recency
points” previously provided by § 4A1.1(e) (Nov. 2009). However, Goynes was not
assessed any recency points under § 4A1.1(e). Rather, she received two points
under § 4A1.1(d), which has not been revoked and which applies when a
defendant has committed a crime while on supervised release. Accordingly,
Goynes’s argument warrants no relief.
      The judgment of the district court is AFFIRMED. Goynes’s renewed
motion for release on bail pending appeal is DENIED.




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