IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKEY JEROME ROGERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No.96-CR-19-ALL
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March 18, 1999
Before KING, Chief Judge, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Rickey Jerome Rogers appeals the sentence he received
following remand by this court. Rogers argues that the burden of
proof at his sentencing should have been the reasonable doubt
standard. Because Rogers raises this issue for the first time on
appeal, we review for plain error. See United States v.
Calverley, 37 F.3d 160, 162-164 (5th Cir. 1995) (en banc); see
also United States v. Olano, 507 U.S. 725, 731-36 (1993).
Inasmuch as Rogers received 131 months of imprisonment for each
*
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that this opinion should not be published and is not precedent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.
No. 98-30410
-2-
of his burglary convictions, and the statutory maximum for each
conviction is 240 months of imprisonment, Rogers has not shown
that the district court’s findings dramatically altered its
sentencing options necessitating a higher burden of proof. See
United States v. Mergerson, 4 F.3d 337, 342 (5th Cir. 1994).
Rogers argues that the district court abused its discretion
in departing upward on his sentence. After reviewing the record
and the briefs of the parties, we hold that the district court
did not abuse its discretion in departing upward. See United
States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en banc).
The district court gave acceptable reasons for departing upward.
See United States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993).
Rogers also contends that the district court’s calculation
of his criminal history level was erroneous because some of the
charges were “related offenses” and some in which he was not
represented by counsel. This issue is beyond the scope of remand
and could have been raised in his first appeal. See United
States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir. 1998), cert.
denied, 119 S. Ct. 622 (1998).
AFFIRMED.