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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30056

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TANYA MARIE SMITH,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:07-CR-30037-1

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

A jury convicted Tanya Marie Smith of conspiring to possess firearms by

convicted felons, being a felon in possession of firearms, and possessing a shortbarreled shotgun not registered to her, as charged in Counts 1, 2, and 4 of the

indictment, respectively. Over Smith’s objection, the district court calculated her

sentencing range based on the base offense level for second degree murder,

pursuant to the “cross reference” provision of U.S.S.G. § 2K2.1(c)(1)(B). Because

the advisory guidelines range was higher that the statutory maximums for the

United States Court of Appeals

Fifth Circuit

F I L E D

January 4, 2010

Charles R. Fulbruge III

Clerk
No. 09-30056

2

offenses, the court sentenced Smith to the statutory maximums, 60 months on

Count 1 and 120 months on Counts 2 and 4, to run consecutively.

Smith challenges the sufficiency of the evidence to support her convictions

on Counts 1 and 4. She argues that the Government failed to prove an

agreement to support her conspiracy conviction and failed to prove that she

possessed the shotgun. Because she raised these arguments in her motions for

judgment of acquittal, review is de novo. See United States v. Percel, 553 F.3d

903, 910 (5th Cir. 2008), cert. denied, 129 S. Ct. 2065 and 2067 (2009). There

was evidence that Smith and Dennis Clem, both convicted felons, drove around

Bastrop, Louisiana, with the shotgun and other firearms under a blanket on the

floorboard behind the front seat. Smith was usually the driver of the vehicle and

one day accompanied Clem and another man when they took the shotgun and

other firearms from vehicle and shot them on some land. Viewed in the light

most favorable to the verdict, a reasonable jury could conclude both that Smith

agreed to violate the law prohibiting her and Clem from possessing firearms, see

United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002), and that she

constructively possessed the shotgun, see United States v. Knezek, 964 F.2d 394,

400 (5th Cir. 1992).

Smith asks this court to review the sufficiency of the evidence to support

her conviction on Count 2, but provides no further argument. She has thus

abandoned this issue. See United States v. Stalnaker, 571 F3d 428, 433 (5th Cir.

2009). Moreover, the evidence that supports the possession element of her

conviction on Count 4 supports the possession element of her conviction on

Count 2.

With regard to her sentence, Smith challenges the district court’s finding

that it was credible that Crystal Harrell called Smith before the doomed police

officers arrived at Smith and Clem’s hotel room. Our review of the record

reveals that this finding is plausible in light of the record as whole. See United

States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). To the extent
No. 09-30056

3

this finding is based on double hearsay, Smith has not shown that the evidence

regarding the phone call was unreliable or untrue. See U.S.S.G. § 6A1.3(a), p.s.,

comment. (noting that the sentencing court may consider “reliable hearsay”);

United States v. Rodriguez, 62 F.3d 723, 725 n.9 (5th Cir. 1995) (same). Thus,

she has not shown the district court erred in considering the information.

Smith asserts, without further argument, that applying the factors set

forth in 18 U.S.C. § 3553(a) to determine the reasonableness of the sentence

imposed, her “sentence is clearly excessive.” Smith did not object specifically to

the substantive reasonableness of the sentence, and thus, review is for plain

error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

The sentence imposed on each count of conviction is within the properly

calculated guidelines range and, thus, is presumptively reasonable. See United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Further, the record indicates

that the district court made an individualized sentencing decision based on the

facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at

49-50. Smith has not overcome the presumption of reasonableness and has not

shown that the district court plainly erred in determining that the sentences

imposed would satisfy the goals of § 3553(a).

AFFIRMED.