IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31077
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERENCE BROWN, also known
as Terance G. Brown,
Defendant-Appellant.
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Appeal from the United States District Court for the
Middle District of Louisiana
USDC No. 99-CR-39-ALL-C
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July 13, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Terence Brown has appealed the sentence imposed by the
district court following his guilty plea conviction for unlawful
possession of a firearm.
Brown asserts that the upward departure was improperly based
on his arrest record and that the district court improperly
considered prior convictions that were more than fifteen years old.
See U.S.S.G. § 4A1.2(e). A district court’s decision to depart
*
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this opinion should not be published and is not precedent except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.
from the sentencing guidelines is generally reviewed for abuse of
discretion. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir.
1994)(en banc).
In its reasons for judgment, the district court made it clear
that it looked not at the mere fact of prior arrests, but, rather,
that it looked to the violent nature and frequency of Brown’s prior
criminal conduct. In determining whether an upward departure is
warranted, a district court may consider older prior convictions
whose sentences are evidence of similar, or serious dissimilar,
criminal conduct. U.S.S.G. § 4A1.2, comment. (n.8); see also
United States v. Harrington, 114 F.3d 517, 520 (5th Cir. 1997);
United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993).
The district court did not abuse its discretion in considering
Brown’s older prior convictions and the violent nature of Brown’s
prior criminal conduct in deciding to depart upward from the
sentencing guideline.
Brown also asserts that the district court erred in upwardly
departing from the applicable sentencing guideline range because it
did not expressly state that it had considered intermediate
criminal category histories. Because Brown failed to raise this
argument below, it is reviewed for plain error. See United States
v. Alford, 142 F.3d 825, 830 (5th Cir. 1998).
2
The district court based its upward departure on the grounds
that Brown’s criminal history category did not adequately reflect
the seriousness or violent nature of Brown’s past criminal conduct.
The district court’s reasons for departure were acceptable and
adequately explained. See U.S.S.G. § 4A1.3; United States v.
Chappell, 6 F.3d 1095, 1102 (5th Cir. 1993); Ashburn, 38 F.3d at
809.
In the light of the foregoing, the district court did not err
in upwardly departing from the applicable guideline range.
Ashburn, 38 F.3d at 807. The judgment of the district court is
A F F I R M E D.
3
United States v. Brown
Combined Opinion