FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 19, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14919

Non-Argument Calendar

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D. C. Docket No. 05-00023-CR-DHB-3

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DANIELLE METCALF SHANEZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(March 19, 2007)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Danielle Metcalf Shanez appeals her sentence of twelve months of

imprisonment for interstate travel to facilitate a gambling enterprise. See 18
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U.S.C. § 1952(a)(3). Shanez argues that the district court erroneously departed

upward from the applicable Sentencing Guidelines range and failed to give

reasonable notice that a departure was possible. Shanez did not object at

sentencing on either ground. We affirm.

“When a defendant fails to object to an error before the district court, we

review the argument for plain error.” United States v. Raad, 406 F.3d 1322, 1323

(11th Cir.), cert. denied, __ U.S. __, 126 S. Ct. 196 (2005). Plain error occurs

where “(1) there is an error; (2) that is plain or obvious; (3) affecting the

defendant’s substantial rights in that it was prejudicial and not harmless; and (4)

that seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” Id. (internal quotation marks omitted). 

Shanez first argues that the district court erroneously departed from the

applicable Guidelines range. We disagree. Contrary to Shanez’s characterization,

the deviation by the district court was a variance and not a departure. The district

court adopted from the Presentence Investigation Report the calculation of an

advisory Guidelines range of zero to six months of imprisonment. The court then

considered the section 3553(a) factors, decided to vary from the Guidelines, and

imposed a sentence of twelve months of imprisonment. That the district court

sometimes described its deviation as a “departure” is not dispositive and merely
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reflects an imprecise use of language by the district court.

To the extent Shanez’s argument can be construed to contend that the district

court erroneously varied from the applicable Guidelines range, the argument still

fails. After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

court may impose a sentence that varies from the applicable Guidelines range so

long as it considers the factors of section 3553(a) and imposes a sentence that is

reasonable. See United States v. Talley, 431 F.3d 784, 786, 788 (11th Cir. 2005). 

Here, the district court thoughtfully explained how Shanez’s sentence was based on

the factors of section 3553(a), and nothing in the record suggests that the sentence

is unreasonable. There was no plain error.

Shanez’s second argument is that the district court failed to give her

reasonable notice under Federal Rule of Criminal Procedure 32(h). This argument

is foreclosed by our precedent. Because the sentence imposed by the district court

was a variance and not a departure, Rule 32(h) did not apply, and the district court

did not err. See United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006)

(“We . . . conclud[e] Rule 32(h) does not apply to . . . variances.”).

Shanez’s sentence is

AFFIRMED.