* 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opinion should not be published and is not precedent except under the limited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

August 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30099

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RITA RUSSELL CLOUD,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Louisiana

No. 2:04-CR-20063

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Rita Cloud appeals the judgment of revocation of her probation

following her conviction of embezzlement of labor funds by a union

officer in violation of 29 U.S.C. § 501. She argues that her sentence of twenty-four months’ imprisonment exceeds the guidelines

range and is unreasonable in light of the factors in 18 U.S.C.

§ 3553(a).

When a defendant violates a condition of probation, the dis-
2

trict court, after a hearing and after considering the factors set

forth in § 3553(a), may revoke the sentence of probation and resentence the defendant under the general provisions of subchapter A, which are found at 18 U.S.C. §§ 3551-3559, taking into account the nonbinding policy statements of Guidelines Manual Chapter 7. See 18 U.S.C. § 3565(c); United States v. Pena, 125 F.3d

285, 287 (5th Cir. 1997).

Cloud’s original offense of conviction carried a penalty of

not more than five years. See § 501(c). Her sentence of twentyfour months does not exceed the statutory term and therefore is a

lawful sentence. See Pena, 125 F.3d at 288. Cloud is correct that

her term of imprisonment exceeds the guidelines range for her original offense of six to twelve months, but the district court was

not limited to the guidelines range that was available at the time

of the initial sentence. See id. at 287.

The district court determined that Cloud’s violation was a

Class C violation. With a criminal history category of I, the

guidelines set forth an advisory range of three to nine months.

U.S.S.G. § 7B1.4(a). The record confirms that the court implicitly

considered the factors set forth in § 3553(a), including the nature

and circumstances of the offense, Cloud’s history and characteristics, and the need for the sentence to reflect the seriousness of

the offense, to promote respect for the law, to provide just punishment for the offense, and to afford adequate deterrence to criminal conduct. § 3553(a); see United States v. Gonzalez, 250 F.3d
3

923, 930 (5th Cir. 2001). More specifically, the court concluded

that Cloud had violated numerous conditions of her probation, had

committed crimes while on probation that were similar to her initial crime of embezzlement, and had continued to engage, while on

probation, in a pattern of failing to take responsibility for her

actions.

Therefore, although the sentence is in excess of the advisory

guidelines range, it was imposed after consideration of the factors

set forth in § 3553(a) and was neither unreasonable nor plainly unreasonable in light of the circumstances. United States v. Hinson,

429 F.3d 114, 119-20 (5th Cir. 2005), cert. denied 126 S. Ct. 1804

(2006).

The judgment of revocation is AFFIRMED.