IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 22, 2008
No. 07-51249
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID EDWARD HOLT
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-40-ALL
Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
David Edward Holt appeals the 72-month sentence that he received after
he pleaded guilty to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). Holt contends that the district court abused its discretion
when it imposed a sentence above the recommended Guidelines range without
setting forth clear reasons for the departure. He argues that, absent articulated
reasons for the sentence, this court cannot review it for reasonableness, as it is
required to do under United States v. Booker, 543 U.S. 220 (2005). He also
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51249
maintains that the court’s sentence was not a “Guidelines sentence,” urging that
the court did not follow U.S.S.G. § 4A1.3.
Section 4A1.3 of the Sentencing Guidelines provides,
(a)(1) Standard for Upward Departure.–If reliable information
indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit
other crimes, an upward departure may be warranted.
(2) Types of Information Forming the Basis for Upward Departure.–
The information described in subsection (a) may include information
concerning the following:
(A) Prior sentence(s) not used in computing the criminal history
category (e.g., sentences for foreign and tribal offenses).
(B) Prior sentence(s) of substantially more than one year imposed as
a result of independent crimes committed on different occasions.
(C) Prior similar misconduct established by a civil adjudication or
by a failure to comply with an administrative order.
(D) Whether the defendant was pending trial or sentencing on
another charge at the time of the instant offense.
(E) Prior similar adult criminal conduct not resulting in a criminal
conviction. . . .
(4)(B) In a case in which the court determines that the extent and
nature of the defendant’s criminal history, taken together, are
sufficient to warrant an upward departure from Criminal History
Category VI, the court should structure the departure by moving
incrementally down the sentencing table to the next higher offense
level in Criminal History Category VI until it finds a guideline
range appropriate to the case. . . .
(c) Written Specification of Basis for Departure.– In departing from
the otherwise applicable criminal history category under this policy
statement, the court shall specify in writing the following:
(1) In the case of an upward departure, the specific reasons why the
applicable criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.
The court’s written Statement of Reasons explains the facts justifying the
departure, stating,
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The Court departs from the advisory guideline range for reasons
authorized by the sentencing guideline manual. . . . The sentence
imposed departs above the advisory guideline range for the
following reasons . . . . government motion for departure.1 4A1.3
Criminal History inadequacy. . . . The defendant’s criminal history
(33 criminal history points) is not adequately reflected in the
criminal history category VI.
The Statement of Reasons also adopts the presentence investigation report
without change, which provides details on Holt’s past convictions, including
felonies and misdemeanors. The district court provided sufficiently specific
written reasons accompanying the judgment of conviction for why the criminal
history category under-represented Holt’s criminal history. It also provided
adequate reasoning for its incremental upward departure.2 In so doing, the
district court followed U.S.S.G. § 4A1.3 and thus imposed a “Guidelines
sentence.”3
1
The Government stated at the sentencing proceeding, “The government is asking for
a sentence above the recommended range. The defendant in this case has 33 criminal history
points. In the last nine years he’s had five convictions. In 18 years he’s had 17 convictions.
He has a total of ten felony offenses to his credit. The criminal history category does not
adequately reflect the seriousness of his true criminal history or his propensity or likelihood
to reoffend. We are asking for a sentence above the recommended range.” The court then
found, “I would agree that the criminal history of six does not adequately represent the
defendant’s actual propensity to commit crime and that an upward departure would be
appropriate.”
2
See discussion infra discussing the court’s bypassing of criminal categories that it
deemed inadequate.
3
Holt urges that there is no “writing contained within the record of this case wherein
the district court addresses why the applicable criminal history category substantially under-
represents the seriousness of Holt’s criminal history. Nor is there any writing by the district
court which addresses the likelihood that Holt will commit other crimes.” Because we find that
the court provided adequate reasoning for why the criminal history category under-represented
Holt’s criminal history, we need not address the court’s consideration of the likelihood of future
crimes. See U.S.S.G. § 4A1.3(c) (“In departing from the otherwise applicable criminal history
category under this policy statement, the court shall specify in writing the following: (1) In the
case of an upward departure, the specific reasons why the applicable criminal history category
substantially under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” (emphasis added)).
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No. 07-51249
Holt also maintains that the district court’s upward departure was
unreasonable. Under Booker, this court reviews Holt’s sentence for
reasonableness. Gall v. United States, 128 S. Ct. 586, 591 (2007). In making
this reasonableness determination, we review both the decision to depart and
the extent of the departure “under a deferential abuse-of-discretion standard.”
Id. This court looks first to whether the district court committed procedural
error when it sentenced Holt. See id. at 596. Although the Guidelines generally
direct a court to determine the extent of a departure by reference to “the
criminal history category applicable to defendants whose criminal history or
likelihood to recidivate most closely resembles that of the defendant’s,” no
express reference is needed if it is evident that the court bypassed criminal
history categories it deemed inadequate. § 4A1.3(a)(4)(B); United States v.
Simkanin, 420 F.3d 397, 419 (5th Cir. 2005). At the sentencing hearing, the
Government put into context the frequency with which Holt had been convicted.
The district court’s agreement with the Government that an upward departure
was warranted makes evident that the district court bypassed categories it
deemed inadequate. See id.; see also United States v. Rosogie, 21 F.3d 632,
633-34 (5th Cir. 1994). Moreover, as we have discussed, the district court
complied with § 4A1.3(c) in its Statement of Reasons for the sentence that it
imposed and correctly applied §4A1.3(a)(2)(A). See United States v.
Zuniga-Peralta, 442 F.3d 345, 348-49 (5th Cir. 2006). The court also implicitly
considered the 18 U.S.C. § 3553(a) factors pertaining to the nature and
circumstances of the offense and the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law, and to afford adequate
deterrence to criminal conduct when it addressed Holt’s recidivisim in adopting
the PSR, which stated, “The defendant’s criminal history is one of continuing
criminal behavior . . . . The defendant has repeatedly demonstrated a willingness
to continue to commit new criminal offenses and not abide by the laws governing
society.” See, e.g., United States v. Everist, 368 F.3d 517, 521 (5th Cir. 2004)
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No. 07-51249
(“The court already had made plain its view of the severity of . . . [appellant’s]
conduct when it discussed the presentence report and the manner of the
sentence calculation. Because the seriousness of the offense was an important
and allowable element under § 3553(a), the court’s statements imply
consideration of relevant factors under the statute.”).
Given that the district court made no significant procedural error when it
upwardly departed, this court next looks to whether the sentence was
substantively reasonable. See Gall, 128 S. Ct. at 597. In light of Holt’s criminal
history, the sentence that he received was neither unreasonable nor an abuse of
discretion. See Zuniga-Peralta, 442 F.3d at 348-49; Rosogie, 21 F.3d at 633-34.
AFFIRMED.
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