United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-10808
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HARDIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-20-3
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
James Hardin pleaded guilty to stealing explosive materials
in interstate commerce in violation of 18 U.S.C. § 844(k) and was
sentenced to 27 months of imprisonment and three years of
supervised release. Hardin argues that the district court
improperly relied on information he provided in his proffer
interview to justify an upward departure. The district court
specifically found that the probation officer did not rely on
Hardin’s proffer-related information to recommend an upward
departure. Based on the probation officer’s assertions 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this opinion should not be published and is not precedent except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. 06-10808
-2-
information obtained from Hardin’s co-defendants was
independently obtained, the district court’s finding was not
clearly erroneous. See United States v. Gibson, 48 F.3d 876, 879
(5th Cir. 1995).
Hardin states that the upward departure was unreasonably
severe, but he does not brief the unreasonability of the upward
departure in his argument. He also argues that his sentence was
not in keeping with the actual conduct surrounding the commission
of his offense. Hardin’s actual offense conduct was addressed in
the calculation of his base offense level. The upward departure
was based on his other uncharged criminal conduct which the
district court concluded was not represented in his criminal
history score. Hardin has not made any arguments suggesting that
the district court abused its discretion in either its decision
to depart or the extent of departure. United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006).
AFFIRMED.