Case: 13-10506      Document: 00512579224         Page: 1    Date Filed: 03/31/2014




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

                                                                                FILED
                                    No. 13-10506                          March 31, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EVERDA E. BARON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-233-1


Before HIGGINBOTHAM, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Everda E. Baron appeals the 36-month, above-guidelines sentence
imposed after she pleaded guilty to possession of counterfeit financial
obligations. She challenges the procedural reasonableness of her sentence,
arguing that the district court erroneously calculated the guidelines range by
applying a two-level enhancement pursuant to U.S.S.G. § 2B1.1 (b)(11). That
section authorizes a two-level enhancement if the defendant trafficked


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10506    Document: 00512579224     Page: 2   Date Filed: 03/31/2014


                                 No. 13-10506

unauthorized or counterfeit “access devices.”      § 2B1.1(b)(11).    As Baron
concedes, our review is for plain error. See United States v. Peltier, 

, 391-92 (5th Cir. 2007).
      The access devices at issue here are counterfeit American Express
traveler’s checks.   Although this court has determined that counterfeit or
forged checks are not access devices under the definition set forth in 18 U.S.C.
§ 1029(e), this court has not addressed whether counterfeit traveler’s checks
are access devices under that section. See United States v. Hughey, 

, 433-36 (5th Cir. 1998). Thus, any error was not plain or obvious. See
United States v. Ellis, 

, 377-78 (5th Cir. 2009).
      In addition, the record demonstrates that the district court imposed a
non-guidelines sentence based on the 18 U.S.C. 3553(a) factors. The district
court’s reasons show that the court imposed a non-guidelines sentence due to
the nature and circumstances of the offense as well as to promote respect for
the law, to provide just punishment, and to deter future criminal conduct.
Because the district court imposed a non-guidelines sentence based on the
§ 3553(a) factors, any error in the calculation of the guidelines range did not
affect the actual sentence; thus, Baron cannot demonstrate that but for error,
she would have received a lesser sentence. See United States v. Dickson, 

, 191 (5th Cir. 2011).
      Accordingly, the judgment of the district court is AFFIRMED.




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