United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41161
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-276-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Mario Alberto Pena appeals following his guilty-plea
conviction and sentence for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Pena challenges
the district court's upward departure on the basis that his
criminal history score under-represented his criminal history.
Because Pena did not object to the district court's departure at
*
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that this opinion should not be published and is not precedent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. 03-41161
-2-
sentencing, our review is for plain error. See United States v.
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).
Pena argues that his sentence must be vacated because the
district court failed to state its reasons on the record for
rejecting an intermediate criminal history category before
departing upward from category IV to category VI. He also argues
that his criminal history category IV did not significantly
under-represent his criminal history. The district court held
that a departure was warranted because 1) the criminal history
score did not reflect Pena's likelihood for recidivism; 2) Pena
had an extensive juvenile record for which he received no
criminal history points; and 3) Pena had numerous convictions as
an adult but continued to violate the law in a violent manner.
We conclude that there is no plain error in the district court's
departure. See United States v. Lambert, 984 F.2d 658, 662-63
(5th Cir. 1993)(en banc); U.S.S.G. § 4A1.3.
Pena also argues for the first time on appeal that the
Government breached the plea agreement because it did not orally
recommend that he be sentenced at the low end of the applicable
guideline range. The terms of Pena's plea agreement and the
Government's recommendation are set forth in the presentence
report, however, and there is no plain error. See United States
v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).
AFFIRMED.