USA v. Jenny Smith
UNPUBLISHED OPINION FILED. [16-60215 Affirmed] Judge: PEH, Judge: ECP, Judge: CH. Mandate pull date is 03/07/2017 for Appellant Jenny Marie Smith [16-60215]
Date Filed: 02/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
February 14, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JENNY MARIE SMITH,
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:09-CR-18-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Jenny Marie Smith appeals the 24-month sentence imposed following
the revocation of supervised release.
Smith pleaded guilty in 2009 to
embezzlement by a bank employee and was sentenced to 14 months of
imprisonment and five years of supervised release. She was serving her term
of supervised release when she was arrested on later felony embezzlement
charges that resulted in the revocation of her supervised release.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 02/14/2017
Smith argues that the district court committed procedural error by
basing the sentence on the erroneous belief that she committed the instant
offense while receiving counseling and that the sentence is substantively
unreasonable because it is greater than necessary to satisfy the sentencing
factors set forth in 18 U.S.C. § 3553(a).
After the district court noted that the counseling Smith received had
failed to provide adequate deterrence, Smith’s counsel objected. The district
court then engaged in a colloquy with Smith regarding her counseling, and no
further objection was made. Further, the record shows that one of the special
conditions of her supervised release was that she obtain counseling, and she
testified that she had received counseling in the past. Moreover, the district
court considered the Chapter Seven policy statements as well as Smith’s
mitigation arguments and ultimately concluded that the 24-month sentence
was necessary to provide adequate deterrence, given her many years of
embezzling from various employers, and to protect the public from future
crimes—factors that were appropriate for the district court to consider in
imposing the revocation sentence and which we will not reweigh. See Gall v.
United States, 552 U.S. 38, 51 (2007); 18 U.S.C. § 3583(e). As for the extent of
the variance, we have routinely upheld revocation sentences that exceed the
guidelines range by an even greater degree but are within the statutory
maximum. See, e.g., United States v. Kippers, 685 F.3d 491, 500-01 (5th Cir.
2012) (affirming a 48-month sentence where the advisory range on revocation
of probation was three to nine months); United States v. Whitelaw, 580 F.3d
256, 265 (5th Cir. 2009) (affirming a 36-month sentence where the guidelines
range on revocation of supervised release was four to ten months).
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