* 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this opinion should not be published and is not precedent except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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United States Court of Appeals

Fifth Circuit

FILED

December 6, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-30281

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER JAMES THOMAS,

Defendant-Appellant.

Appeal from the United States District Court 

for the Middle District of Louisiana

(3:04-CR-161-1)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Walter James Thomas challenges the district court’s upward

departure and deviation from the Guideline range, following his

guilty-plea conviction for one count each for mail fraud, money

laundering, and making a false statement on a tax return. See 18

U.S.C. §§ 1341, 1956(a)(1)(A)(I); 26 U.S.C. §§ 7206(1). The

Guideline range of imprisonment was 70 to 87 months. After

departing upward one criminal-history category, the district court
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determined the resulting 84-to-105-month sentencing range was still

insufficient and imposed a non-Guideline sentence (upward

deviation) of 120 months. See United States v. Smith, 440 F.3d

704, 706-07 (5th Cir. 2006).

In imposing the criminal-history-category upward departure,

the district court considered: Thomas’ criminal conduct not

counted under the Guidelines; the obscenity charges both dropped

and pending against him; his attempt to use a victim’s identity to

obtain $50,000 in credit from American Express; the hardships

imposed on victims of identity theft; his theft of $50,000 from his

mother and the resulting hardship on her; his having been charged

with only three counts, despite having committed numerous separate

mail-fraud and money-laundering offenses and that he could have

been charged with many separate theft offenses under state law; and

the likelihood of recidivism based on his criminal history. The

district court did not abuse its discretion in deciding to depart

upward. Its reasons for doing so advanced the objectives set forth

in 18 U.S.C. § 3553(a)(2), were authorized by § 3553(b), and were

justified by the facts of the case. See United States v. Saldana,

427 F.3d 298, 310 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005).

With regard to the upward deviation, pursuant to United States

v. Booker, 543 U.S. 220 (2005) (Guidelines only advisory), the

district court properly calculated the post-departure Guideline

range of imprisonment and explained in detail, both orally and in
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its written reasons for judgment, why it was imposing the sentence.

See Smith, 440 F.3d at 708. The court’s written reasons, as well

as those articulated at sentencing, reflect appropriate concern for

“the nature and circumstances of the offense and the history and

characteristics of the defendant”, as required by § 3553(a)(1).

The extent of the upward deviation advances the objectives of §

3553(a)(2) in that it reflects the seriousness of Thomas’s crimes

against the victims, protects the public from further crimes by

Thomas, and affords adequate deterrence to criminal conduct. See

§ 3553(a)(2)(A)-(C). The district court appropriately considered

factors that both receive insufficient weight under the Guidelines

and reflect the concerns of 18 U.S.C. § 3553(a). See Smith, 440

F.3d at 708; U.S.S.G. § 5K2.0 (allowing departures for factors not

adequately considered by Guidelines). Therefore, the sentence is

not unreasonable under Booker.

AFFIRMED