United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 12, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30565
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH ALEXANDER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-315-L
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Joseph Alexander appeals his concurrent 120-month sentences
following his plea of guilty to two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). Alexander contends that the district court erred
in departing upward from a guideline sentencing range of 41 to 51
months. Because Alexander’s sentences should be affirmed under
any standard of review, his motion to stay this appeal is denied.
*
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that this opinion should not be published and is not precedent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. 03-30565
-2-
Alexander argues that the fact that he was convicted of two
offenses did not support the district court’s upward departure.
The record supports the district court’s findings that
Alexander’s offenses were atypically serious and were not
adequately taken into account by the sentencing guidelines.
Alexander does not contest the district court’s finding that
threatening letters he had written also reflected that his
criminal history category significantly under-represented the
seriousness of his criminal history.
Arguably, the district court did impermissibly base the
departure, in part, on Alexander’s prior firearm-related arrests
that did not result in conviction. See United States v. Cantu-
Dominguez, 898 F.2d 968, 970-71 (5th Cir. 1990). However, the
district court’s remaining reasons were valid and sufficient to
support its upward departure. See Williams v. United States,
503 U.S. 193, 203-04 (1992). Moreover, the extent of the
departure was reasonable. See United States v. Daughenbaugh,
49 F.3d 171, 174-75 (5th Cir. 1995); United States v. Ashburn,
38 F.3d 807, 809 (5th Cir. 1994) (en banc).
MOTION TO STAY APPEAL DENIED; JUDGMENT AFFIRMED.