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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

April 16, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50853

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUGLAS WAYNE HATCHETT,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:05-CR-532-3

--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Douglas Wayne Hatchett appeals the sentence imposed after

he pleaded guilty to aiding and abetting bank fraud in violation

of 18 U.S.C. §§ 2, 1344. Hatchett’s offense conduct was part of

a larger scheme to defraud banks and retailers in Texas that

involved fraudulent check-writing and the assumption of false

identities.

The presentence report set Hatchett’s guideline range at 51

to 63 months of imprisonment, but the district court upwardly
No. 06-50853

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departed pursuant to § 5K2.0 and § 2B1.1 of the Guidelines and

sentenced Hatchett to 120 months of imprisonment.

When a defendant appeals a sentence imposed pursuant to the

advisory guidelines scheme required by United States v. Booker,

543 U.S. 220 (2005), this court determines whether the sentence

was reasonable. United States v. Smith, 440 F.3d 704, 706 (5th

Cir. 2006). The sentencing court’s factual findings are accepted

unless clearly erroneous, and the application of the Guidelines

is reviewed de novo. Id.

Because the district court upwardly departed pursuant to

§ 5K2.0 of the Guidelines, Hatchett’s sentence is a “guideline

sentence,” and the decision to depart is reviewed for abuse of

discretion. See id. at 707; see also United States v. Simkanin,

420 F.3d 397, 415-16 (5th Cir. 2005), cert. denied, 126 S. Ct.

1911 (2006). “A sentencing court does not abuse its discretion

in deciding to upwardly depart when its reasons for doing so

(1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2);

(2) are authorized by 18 U.S.C. § 3553(b); and (3) are justified

by the facts of the case.” United States v. Saldana, 427 F.3d

298, 310 (5th Cir. 2005) (footnotes omitted), cert. denied,

126 S. Ct. 1097 (2006). 

Hatchett’s first argument is predicated on a misreading of

Booker. Hatchett claims that the district court violated the

rule that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized
No. 06-50853

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by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 543 U.S. at 244. The district

judge’s fact-finding was proper because “with the mandatory use

of the Guidelines excised, the Sixth Amendment will not impede a

sentencing judge from finding all facts relevant to sentencing.” 

United States v. Mares, 402 F.3d 511, 519 (5th Cir.) (citing

Booker, 543 U.S. at 233, 259), cert. denied, 126 S. Ct. 43

(2005).

Hatchett also argues that the upward departure was

unreasonable because the district court’s statements at the

sentencing hearing and in its written statement of reasons

regarding participants in the fraud scheme dressing up like

military personnel in order to facilitate their crimes are not

supported by the record. While the record does not show that the

scheme involved “dressing up” like military personnel, Hatchett

never denied that such activity occurred, and he did not object

to the court’s statements below. In addition, the record shows

that military identification devices were created and used as

part of the fraud scheme. The court’s finding of fact was not

clearly erroneous. See Smith, 440 F.3d at 706. Nor were its

reasons for upwardly departing unreasonable, as they are

“justified by the facts of the case.” See Saldana, 427 F.3d at

310.
No. 06-50853

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Finally, Hatchett argues that the district court’s reasons

for upwardly departing were “patently unreasonable” because the

district court held him responsible “for blowing up the Oklahoma

City Federal Building before the superseding indictment’s

timeframe” and “for blowing up the Sears Tower when it has not

yet been blown up.” The district court never held Hatchett

responsible for these explosive scenarios but mentioned them to

illustrate the danger presented by the methods of those involved

in Hatchett’s fraud scheme. In addition, the court pointed to

the commentary to § 2B1.1, which specifically contemplates that

an upward departure may be warranted where, as here, “[t]he

offense caused substantial harm to the victim’s reputation or

credit record, or the victim suffered a substantial inconvenience

related to repairing the victim’s reputation or a damaged credit

record” or where “[a]n individual whose means of identification

the defendant used to obtain unlawful means of identification

is erroneously arrested.” § 2B1.1 cmt. n.19(A)(vi)(I) and (II). 

One of Hatchett’s victims suffered both these indignities. 

Accordingly, the court’s decision to depart was not unreasonable. 

See Smith, 440 F.3d at 706-07.

AFFIRMED.