United States v. Jackson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 18, 2006

Charles R. Fulbruge III
Clerk
No. 05-20441
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH ALBERT JACKSON,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-543-ALL
--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Joseph Albert Jackson appeals the upward departure that

resulted in his 60-month sentence following his conviction on a

guilty plea to being a felon in possession of a firearm. Jackson

contends that the district court improperly departed because it

bypassed criminal history categories V and VI without stating

reasons for its rejection of those categories. Jackson asserts

that the district court did not consider 18 U.S.C. § 3553’s

sentencing factors and imposed an unreasonable sentence.

*
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this opinion should not be published and is not precedent except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. 05-20441
-2-

We review an upward departure for reasonableness; we review

the decision to depart upwardly and the extent of the departure

for an abuse of discretion. United States v. Zuniga-Peralta, 442

F.3d 345, 347 (5th Cir. 2006). An upward departure is not an

abuse of the district court’s discretion when it (1) “advance[s]

the objectives set forth in 18 U.S.C. § 3553(a)(2)”; and (2) is

“justified by the facts of the case.” Id.

The district court departed upwardly after citing to six

prior convictions that did not contribute points to Jackson’s

criminal history category and determining that the Sentencing

Guidelines did “not adequately reflect the seriousness of

[Jackson’s] prior conduct” or the likelihood that he would commit

future crimes. The district court’s reasons are sanctioned under

U.S.S.G. § 4A1.3 as grounds for an upward departure, and the

reasons advance the directives of § 3553(a)(2). See United

States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993).

We do not require the district court to engage in “a

ritualistic exercise” in which it “mechanically discusses each

criminal history category it rejects en route to the category it

selects.” McKenzie, 991 F.2d at 204. The district court’s

reasons for rejecting intermediate criminal history categories

are implicit and are supported by the record. See United States

v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006);

McKenzie, 991 F.2d at 204-06.
 No. 05-20441
-3-

The district court’s reasons for the upward departure

correspond to the objectives of § 3553(a)(1) and coincide with

the concerns of § 3553(b). The district court’s statements at

sentencing indicate that it considered the guidelines range and

policies as § 3553(a)(3)-(7) requires. Accordingly, the

district court considered statutory factors in deciding to depart

upwardly and did not abuse its discretion. See United States v.

Saldana, 427 F.3d 298, 312-13, 315-16 (5th Cir.), cert. denied,

126 S. Ct. 810 (2005) and 126 S. Ct. 1097 (2006).

We accord great deference to the district court’s decision

as to the extent of the departure. See Saldana, 427 F.3d at 312.

Accordingly, the judgment of the district court is AFFIRMED.