Case: 16-60215      Document: 00513874713         Page: 1    Date Filed: 02/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-60215                                FILED
                                  Summary Calendar                       February 14, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JENNY MARIE SMITH,

                                                 Defendant-Appellant


                   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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-60215     Document: 00513874713     Page: 2   Date Filed: 02/14/2017


                                  No. 16-60215

      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).
      AFFIRMED.




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