IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50516
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WILLIE HOLLOWAY
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-424-ALL
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March 28, 2002
Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.
PER CURIAM:*
Willie Holloway appeals his conviction and sentence for
possession of cocaine base with the intent to distribute. He
first argues that the statutes under which he was convicted and
sentenced, 21 U.S.C. §§ 841(a)(1) and (b)(1), were
unconstitutional following Apprendi v. New Jersey, 530 U.S. 466
(2000). As Holloway concedes, however, this argument is barred
by United States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir.
2000), cert. denied, 532 U.S. 1045 (2001).
*
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that this opinion should not be published and is not precedent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. 01-50516
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Holloway next contends that the district court erred in
departing upwardly from the applicable guidelines range. He
argues that the district court gave insufficient reasons for
departing, that it did not adequately explain why intervening
levels were inappropriate, and that the departure was excessive.
Each of these arguments is unavailing.
The district court explained that its departure was based on
the fact that Holloway’s criminal history score significantly
underrepresented his criminal past. It relied on the
extensiveness of Holloway’s criminal past; the similarity of his
past drug offenses, including those which did not result in
criminal convictions; and the fact that, at the time of his
arrest, Holloway awaited sentencing in another state-court
conviction for cocaine possession. Id. Each of these factors is
a proper ground for departure. See U.S.S.G. § 4A1.3 (p.s.)
& comment. (backg’d).
Holloway’s contention that the district court relied on
improper speculation regarding prior uncharged criminal conduct
is without merit. Although it is true that a court may not rely
on a defendant’s “prior arrest record itself” (§ 4A1.3), as
explained above, the district court did not rely solely on
Holloway’s prior arrest record. Moreover, the court complied
with the guideline’s directive that it consider “prior similar
adult criminal conduct not resulting in a criminal conviction.”
§ 4A1.3(e).
Holloway’s argument that the district court did not
adequately explain its reasons for rejecting intermediate levels
No. 01-50516
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before reaching its determination that level 33 was appropriate
is similarly unavailing. The district court followed the correct
procedure for departing upwardly from a criminal history score of
VI. See United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir.
1993)(en banc); § 4A1.3. It stated for the record that it had
considered the intermediate levels before determining that level
33 was appropriate. See Lambert, 984 F.2d at 662. The court was
not required to engage in a mechanical, ritualistic approach of
specifying its reasons for rejecting each intermediate level.
Id. at 663. The district court’s reasons for rejecting the
intermediate levels are, if not explicit, implicit in its reasons
for upwardly departing; it did not believe that the intervening
levels were sufficient to address the combination of the
extensiveness and consistency of Holloway’s criminal past with
respect to his propensity for committing drug-related crimes.
This explanation, read in context of the appellate record, was
sufficient. See id.; see also United States v. Ashburn, 38 F.3d
803, 809 (5th Cir. 1994) (en banc). The district court’s
departure was not so drastic as to fall within the very narrow
class of cases when a more detailed explanation is required. See
id.
To the extent that Holloway argues that the district court’s
departure was unreasonably extensive, his argument likewise
fails. The departure was not greater than other departures
approved by this court. See Ashburn, 38 F.3d at 809 (affirming
departure which doubled the recommended guidelines range);
Lambert, 984 F.2d at 664 (same).
No. 01-50516
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The district court’s reasons for the upward departure were
sufficient, and its departure was not an abuse of discretion.
Holloway has not demonstrated any error in the district court’s
judgment, and the judgment is therefore AFFIRMED.