IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2008
No. 07-40295
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MAURICE ANDRE PERRY
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:05-CR-00017-ALL
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Maurice Andre Perry pleaded guilty without a plea agreement to
possession of more than 50 grams of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841. He appeals his sentence, arguing that the district
court erred in departing upward to a term of 192 months. We affirm.
We review upward departures for reasonableness under an abuse-of-
discretion standard. United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005).
A sentencing court does not abuse its discretion in deciding to make an upward
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40295
departure when its reasons for doing so (1) advance the objectives set forth in 18
U.S.C. § 3553(a)(2); and (2) are justified by the facts of the case. United States
v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S. Ct. 2954
(2006). The Guidelines expressly authorize a district court to depart upward
based on a finding that the criminal history category substantially under-
represents the seriousness of the defendant’s criminal past or the likelihood that
he will commit other crimes. See U.S.S.G. § 4A1.3(a)(1); Zuniga-Peralta, 442
F.3d at 347.
Perry argues that the district court erred because the court relied upon
improper prior offenses to support its conclusion that his criminal history score
was not appropriately representative of his “true criminality.” Perry argues that
the offenses and charges considered were either too old, were dismissed when he
pleaded guilty to other charges, were dismissed for lack of evidence, were based
on arrests which were never prosecuted, or were non-significant misdemeanor
offenses.
Perry raised mostly generalized objections to the upward departure before
the district court, and did not specifically argue several of the claims he makes
here. For these claims, we review the district court’s decision for plain error.
United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir. 2005). For the
claims Perry actually preserved with objections, we examine whether error
occurred and, if so, whether that error was harmless. United States v. Mares,
402 F.3d 511, 520 n.9 (5th Cir.2005). For reasons explained below, we need not
specify which standard applies to each of Perry’s individual claims.
The district court explained its decision to make the upward departure by
noting at the sentencing hearing the following considerations, among others:
[Perry’s] likelihood of recidivism is not sufficiently addressed by
placement in a Criminal-History Category [V]. The defendant has
been sent to state prison, the county jail, fined and been on
probation and parole. To date none of these sanctions have had any
meaningful impact on deterring him from a dedicated and very
2
No. 07-40295
motivated criminal lifestyle. And it is, therefore, remarkably
unlikely that he will be deterred in the future without a more
serious punishment . . . .
The district court then calculated Perry’s sentence based upon a criminal
history category of VI.
A finding that a criminal history category does not sufficiently account for
the likelihood of recidivism is by itself an appropriate basis for a departure. See
United States v. McDowell, 109 F.3d 214, 219 (5th Cir. 1997); see also
Background Note to U.S.S.G. § 4A1.3 (noting that the Guideline-produced
criminal history score may not accurately reflect risk of recidivism in defendants
who may have received more lenient treatment for past offenses due to youth).
Further, our review of the record finds the district court’s decision to be justified.
For example, Perry was given deferred adjudication for a prior conviction for
possession of a controlled substance. Upon violating the conditions of his
supervision, he received a ten-year suspended sentence and was placed in an
alternative incarceration program. He again violated his probation terms and
was sentenced to three years in prison.
We need not evaluate Perry’s claim that the district court improperly
relied on other conduct described in the presentence report to conclude that
Perry’s score did not represent his “true criminality.” Even if Perry is correct,
his sentence will be upheld because the district court’s recidivism-based
enhancement is proper. See United States v. Jones, 444 F.3d 430, 438 (5th Cir.
2006) (mistaken application of Guidelines does not require remand where it is
not reasonably probable that the defendant would have received a lesser
sentence on remand).
In sum, the record supports the district court’s decision to depart upward.
Accordingly, the judgment of the district court is AFFIRMED.
3