IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60720

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DEBRA JOAN CLAY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:09-CR-137-3

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Debra Joan Clay appeals the 48-month sentence imposed following her

guilty plea to using access devices issued to other persons in violation of

18 U.S.C. § 1029(a)(5). Clay does not challenge the procedural correctness of her

sentence; therefore, we will proceed to an examination of its substantive

reasonableness. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).

We will assume, arguendo, that Clay sufficiently preserved her challenge for

United States Court of Appeals

Fifth Circuit

F I L E D

April 29, 2011

Lyle W. Cayce

Clerk

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. 10-60720

appeal. Accordingly, we will apply the abuse of discretion standard. See United

States v. Pelitier, 505 F.3d 389, 391 (5th Cir. 2007).

“This court recognizes three types of sentences[.]” Brantley, 537 F.3d at

349. A district court may impose (1) a sentence within the defendant’s

Guidelines range, (2) an upward or downward departure as allowed by the

Guidelines, or (3) a non-Guideline sentence or a variance that is outside of the

relevant Guidelines range. Id.

Clay argues that the district court chose the “second category” and

upwardly departed under U.S.S.G. § 4A1.3. She further argues that the

departure was unwarranted and that the extent of the departure was

unreasonable because the nature of her prior offenses was nonviolent, very

minor economic offenses, which involved “victimless crimes.”

“[A]n upward departure and an upward variance are not one and the

same.” United States v. Jacobs, F.3d , No. 10-20043, 2011 WL 873549, at *3

(5th Cir. Mar. 15, 2001). A “departure” refers only to a sentence imposed under

the framework set out in the Guidelines. Id. at *2. “When the district court

imposes an upward departure, it must explain its reasons for doing so in

Section V of the standard-form Statement of Reasons.” Id. In contrast, a

“variance” is a sentence imposed outside the Guidelines framework. Id. A

district court explains its reasons for imposing a variance in Section VI of the

Statement of Reasons. Id.

Although the district court at times used the term “departure” at the

sentencing hearing, the court’s comments, viewed as a whole, and its written

Statement of Reasons, clearly reflect that it was imposing a sentence which

represented a variance under 18 U.S.C. § 3553(a) rather than an upward

departure. Where the district court has imposed a sentence that varies from the

Guidelines range, reasonableness review requires this court to evaluate whether

the sentence “unreasonably fails to reflect the statutory sentencing factors” set

forth at § 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). A

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sentence outside the Guidelines is 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.” Id.

The district court determined that a variance was justified by Clay’s

uncounted criminal convictions and her continued illegal activities. The court

also specifically cited several of the § 3553(a) factors which it considered

relevant. The district court thus made an “individualized assessment based on

the facts presented” and concluded that the advisory Guidelines range gave

insufficient weight to some of the sentencing factors. See United States v.

Williams, 517 F.3d 801, 809 (5th Cir. 2008). Because the court cited fact-specific

reasons for imposing a non-Guideline sentence and its reasons adequately

reflected consideration of the § 3553(a) factors, the sentence was reasonable and

will not be disturbed. See Brantley, 537 F.3d at 349-50.

AFFIRMED.

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