United States v. Clark

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-10427 Summary Calendar UNITED STATES OF AMERICA Plaintiff - Appellee v. TELASA CLARK, III Defendant - Appellant -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-177-5-A -------------------- December 30, 2002 Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges. PER CURIAM:* Telasa Clark , III (“Clark”), appeals the sentence imposed following his guilty plea to one count of bank robbery and two counts of using and carrying a firearm during the commission of a crime of violence. The district court departed upward from the sentencing range calculated under the United States Sentencing Guidelines to impose an aggregate 600-month sentence for the offenses of conviction. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10427 -2- Clark has failed to establish that the aggravated robbery for which he was convicted in state court and the offenses of conviction were part of a “common scheme or plan” within the meaning of U.S.S.G. § 4A1.2(a)(1); he therefore has shown no error in the use of the state conviction in his criminal history score. See United States v. Garcia, 962 F.2d 479, 482 (5th Cir. 1992), abrogated in part, on different grounds, by Buford v. United States, 532 U.S. 59, 64-66 (2001); United States v. Ford, 996 F.2d 83, 86 (5th Cir. 1993). Clark has failed to show that the district court clearly erred in adding three levels to the offense level because the court determined that one of the robbery victims sustained more than bodily injury but less than severe bodily injury. See U.S.S.G. § 2B3.1(b)(3)(D); United States v. Moore, 997 F.2d 30, 37 (5th Cir. 1993). Finally, Clark has failed to show plain error in the district court’s decision to depart upward in light of Clark’s admitted extensive history of armed robbery; such a departure is authorized by U.S.C.G. § 4A1.3(e), the district court explained its reasons for departure, and Clark has not shown that the extent of the departure was unreasonable. See United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc). AFFIRMED.