UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4301
JESUS MONTERO-CASTANEDA,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-358)
Submitted: September 25, 2001
Decided: October 17, 2001
Before WIDENER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Benjamin H. White, Jr., United States Attorney, Arnold L.
Husser, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
2 UNITED STATES v. MONTERO-CASTANEDA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jesus Montero-Castaneda entered a guilty plea to illegal re-entry
after deportation for an aggravated felony, 8 U.S.C. § 1326(a), (b)
(West 1999). The district court departed upward from criminal history
category V to category VI pursuant to U.S. Sentencing Guidelines
Manual § 4A1.3, p.s. (2000), and imposed a sentence of 102 months
imprisonment. Montero-Castaneda appeals his sentence, contending
that the district court failed to explain adequately its reason for
departing, and that the departure was an abuse of discretion. We
affirm.
With thirteen criminal history points, Montero-Castaneda was ini-
tially placed in category VI. The probation officer suggested that the
district court might want to consider an upward departure under
§ 4A1.3 because Montero-Castaneda had sixteen prior sentences that
were not counted in his criminal history because they were beyond
the applicable time period. The government requested an upward
departure under § 4A1.3, noting the sixteen uncounted sentences, and
arguing that Montero-Castaneda’s criminal record indicated that he
had a "propensity for committing crimes."
At sentencing, the government further argued that the guideline
range did not adequately reflect the seriousness of Montero-
Castaneda’s criminal past because the sixteen uncounted prior sen-
tences were for serious offenses, including among them burglary,
drug possession, forgery, receiving stolen property, and assault.
Under questioning by the district court, Montero-Castaneda denied
committing the breaking and entering, despite his guilty plea, and
went on to deny committing or excuse his commission of most of the
other offenses to which he had pled guilty in the past.
The court then determined that a one-level upward departure was
justified, stating that, "if there is ever a case that I have seen that
UNITED STATES v. MONTERO-CASTANEDA 3
seems to indicate that sentencing alone is not going to have any effect
on the Defendant’s planned and unplanned activities, this certainly is
the one." The new guideline range was 84-105 months. The court
imposed a sentence of 102 months imprisonment.
When the district court decides to depart, it "should clearly identify
the aggravating factors and its reasons for connecting them to the per-
missible grounds for departure under § 4A1.3." United States v.
Rusher, 966 F.2d 868, 882 (4th Cir. 1992) (citation omitted). Here,
Montero-Castaneda’s sixteen uncounted outdated convictions were
correctly identified in the presentence report as a permissible ground
for departure. See USSG § 4A1.2, cmt. n.8 (court may consider sen-
tence imposed outside applicable time period as basis for departure if
it evidences similar, or serious dissimilar, criminal conduct). More-
over, Montero-Castaneda’s long record of convictions also indicated
a likelihood that he would commit more crimes in the future, a factor
that the government emphasized in its sentencing memorandum. The
district court obliquely referred to this factor in announcing its deci-
sion to depart. Even though the court’s explanation of its decision was
not as clear as it could have been, it is evident that the court implicitly
adopted the reasons put forward by the probation officer and the gov-
ernment as justifying a departure. Because the factors underlying the
court’s decision were fully developed, we do not believe remand is
necessary.
Montero-Castaneda also claims that the departure was an abuse of
discretion, but makes no argument on this issue. He has thus aban-
doned the issue on appeal by failing to provide argument in his brief.
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(noting that issues not briefed or argued on appeal are deemed aban-
doned). Therefore, we will not address the issue.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED