United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-20765
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEMENT COMPTON WILLIAMS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-235-ALL
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Clement Compton Williams, Jr. appeals his guilty-plea
sentence for bank robbery. He argues that the district court
erred in departing upward based upon his 1981 aggravated assault
convictions because the convictions were too remote in time and
because they represented neither conduct that was similar to the
charged offense nor serious dissimilar conduct. He also argues
that the district court did not provide sufficient written
reasons for the upward departure. Finally, he argues that the
*
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this opinion should not be published and is not precedent except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. 04-20765
-2-
factual findings required to support the upward departure were
not alleged in the indictment or proven to a jury beyond a
reasonable doubt and, thus, violated Blakely v. Washington, 124
S. Ct. 2531 (2004). Although Williams and the Government
disagree about the standard of review that should apply to
Williams’s first two issues on appeal, we do not resolve their
disagreement because, even under the strictest de novo standard
of review, Williams has not shown reversible error with respect
to these issues.
The district court could depart upward based upon remote
convictions that constituted “serious [] criminal conduct.”
U.S.S.G. §§ 4A1.2(e), comment. (n.8) and 4A1.3. The district
court did not err in finding that Williams’s 1981 aggravated
assault convictions were “serious.” The criminal conduct that
was the basis for these guilty-plea convictions involved Williams
shooting at four people, including family members, in close
proximity to small children.
In addition, we conclude that the district court’s written
reasons for the upward departure were sufficient. See 18 U.S.C.
§ 3553(c) and U.S.S.G. § 4A1.3(c). In the written judgment’s
Statement of Reasons, the district court not only adopted the
presentence report but also stated that, based upon the specific
paragraphs in the presentence report that detailed the criminal
conduct underlying the 1981 aggravated assault convictions,
No. 04-20765
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Williams’s criminal history was understated and was indicative of
a criminal history category IV.
Because Williams did not raise a Blakely objection to the
upward departure in the district court, we review for plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), petition for cert. filed (U.S. Mar. 31, 2005)
(No. 04-9517). Because Williams has not demonstrated that the
district court would have reached a different conclusion
regarding the upward departure if it had known the sentencing
guidelines were advisory only, he has failed to demonstrate that
the error affected his substantial rights. Id. at 521-22.
Williams’s sentence is therefore AFFIRMED. Because Williams’s
sentence is affirmed, we do not address his claim that
resentencing him under an advisory guidelines scheme would
violate the ex post facto and due process clauses of the
constitution.
AFFIRMED.