IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50826
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD FURLOW
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(A-01-CR-60-ALL-SS)
March 19, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Richard Furlow challenges the sentence imposed following his
plea of guilty and conviction for fraud in connection with
identification documents and use of an unauthorized access device
in violation of 18 U.S.C. §§ 1028(a)(4), (c)(1), and 1029(a)(2).
The probation officer determined that Furlow’s criminal history
score was 17, placing him in category VI, and that the offense
level was 11, exposing him to a sentence of 27 to 33 months
*
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should not be published and is not precedent except under the limited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.
imprisonment and 2 to 3 years of supervised release. The district
court, on the Government’s motion, made an upward departure, and
sentenced Furlow to 51 months imprisonment. Finding no abuse of
discretion, we affirm.
We may review a sentence only if it was imposed: (1) in
violation of law, (2) as the result of an incorrect application of
the guidelines, (3) as the result of an upward departure, or (4)
unreasonably for an offense not covered by the guidelines.1 Furlow
challenges the district court’s decision to depart upward from the
Guidelines, which we review for an abuse of discretion.2 “We will
affirm a departure from the Sentencing Guidelines if it is based on
‘acceptable reasons’ and the degree of departure is ‘reasonable.’”3
The district court departed upward by adjusting Furlow’s
offense level from 11 to 15. The Guidelines permit such an upward
departure “when the criminal history category significantly under-
represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit further crimes.”4
The reasons for this decision were carefully detailed by the
district court. First, the district court noted that a 1980
conviction for unlawfully carrying a weapon did not count towards
1
United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001).
2
United States v. Alford, 142 F.3d 825, 830 (5th Cir. 1998).
3
United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998) (quoting
United States v. Clements, 73 F.3d 1330, 1341 (5th Cir. 1996)).
4
U.S.S.G. § 4A1.3.
2
Furlow’s criminal history, as it was too old. Second, the district
court noted that Furlow’s original criminal history score was
higher than the threshold required for placement in category IV.
Finally the court noted Furlow’s violent5 and narcotics-related6
convictions and concluded that the likelihood of recidivism in
Furlow’s case was greater than that represented by his original
criminal history score because he had committed these offenses
usually within a very brief period after being released from
incarceration.
While we have said that the district court, when adjusting the
criminal history of a defendant upward, “should consider each
intermediate criminal history category before arriving at the
sentence,”7 we have recognized that this does not “require the
district court to go through a ritualistic exercise in which it
mechanically discusses each criminal history category it rejects en
route to the category it selects.”8 The same logic holds when a
defendant is already in criminal history category VI and the
district court elects to depart upward by adjusting the offense
level.9 The district court in this case did not need to “stop” and
5
Furlow had previous convictions for burglary of a habitat and aggravated
robbery with a deadly weapon.
6
These included convictions for delivery of cocaine.
7
United States v. Lambert, 984 F.2d 658, 662 (5th Cir. 1993) (en banc).
8
Id. at 663.
9
Id.
3
consider offense levels 12, 13, and 14, because it stated reasons
why smaller departures would not be sufficient. We find this
departure to be reasonable, for the same reasons given by the able
district court.10
AFFIRMED.
10
See U.S.S.G. § 1B1.4 (“In determining ... whether a departure from the
guidelines is warranted, the court may consider, without limitation, any
information concerning the background, character and conduct of the defendant,
unless otherwise prohibited by law.”).
4