United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30676
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH HUNTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-281-ALL-I
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Keith Hunter appeals the sentence imposed after he pleaded
guilty to three counts of trafficking in cocaine, heroin, and
marijuana. He contends that there was no valid basis for the
district court’s upward departure from the recommended sentencing
guideline range based on the facts of his particular case and that
the degree of departure was excessive. We affirm.
*
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this opinion should not be published and is not precedent except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. 03-30676
-2-
We review de novo whether there was a sufficient basis for the
departure, while the degree of departure is reviewed for abuse of
discretion.1
The district court appears to have relied in part on Hunter’s
extensive prior arrest record, contrary to U.S.S.G. § 4A1.3.
However, any error was harmless. The district court properly
relied on the similarity of Hunter’s prior convictions to the
present conviction, Hunter’s failure to satisfy parole
requirements, and the lack of a deterrent effect of prior lesser
punishments.2 The court’s reliance on these valid and sufficient
reasons convinces us that the court would have imposed the same
sentence even without reliance on any invalid factors.3
We also conclude that the degree of departure, from a range of
33-41 months to 87 months, was not unreasonable or an abuse of
discretion.4
The judgment of the district court is AFFIRMED.
1
See 18 U.S.C. § 3742(e); United States v. Bell, __F.3d__,
No. 03-20194 (5th Cir. May 19, 2004), 2004 WL 1114580, *3.
2
See United States v. De Luna-Trujillo, 868 F.2d 122, 125
(5th Cir. 1989) (similarity); United States v. Lee, 358 F.3d 315,
328-29 (5th Cir. 2004) (prior lenient penalties); United States
v. Ford, 996 F.2d 83, 87-88 (5th Cir. 1993) (“repeated parole
violations”).
3
Williams v. United States, 503 U.S. 193, 203 (1992).
4
Cf. United States v. Rosogie, 21 F.3d 632, 633-34 (5th
Cir. 1994); United States v. Daughenbaugh, 49 F.3d 171, 174-75
(5th Cir. 1995).