IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40274
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN GREGORY WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-94-CR-211-1)
September 14, 1995
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Melvin Gregory White appeals from the
sentence imposed by the district court following White's conviction
on a plea of guilty for drug related violations. Specifically,
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
White challenges the decision of the district court to depart
upward on the basis of an understated criminal history. Although
the question is quite close, we find sufficient support in the
Presentence Investigation Report (PSR), the colloquy between the
court and the probation officer who prepared that report, and the
remainder of the transcript of the sentencing hearing, to justify
affirming of the court's upward departure and the sentence imposed
on the basis thereof.
I
FACTS AND PROCEEDINGS
White pleaded guilty to possession with intent to distribute
429 kilograms of marijuana. He had an adjusted base offense level
of 25, a criminal history category of II, and a sentencing range of
63 to 78 months. The district court found that White's criminal
history category "grossly understated" his criminal history and
departed upward based on his uncounted prior convictions to a
hypothetical sentencing range of 70 to 87 months. The district
court also granted the government's motion for a downward departure
based on White's substantial assistance. The district court
sentenced White to 50 months of imprisonment, however, instead of
32 months as recommended by the government. White timely filed a
notice of appeal.
II
ANALYSIS
White contends that the district court failed to espouse
sufficient acceptable reasons justifying its upward departure. He
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maintains that the district court's sole express reason for its
upward departure -- that his criminal history was "grossly
understated" -- was not sufficient to support the upward departure.
An upward departure will be affirmed if the district court
offers acceptable reasons for the departure and the departure is
reasonable. United States v. Lambert, 984 F.2d 658, 663 (5th Cir.
1993) (en banc). The decision to depart from the Sentencing
Guidelines is reviewed for an abuse of discretion. United States
v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993). The district
court's articulated reasons for upward departures are findings of
fact that we review for clear error. United States v. Pennington,
9 F.3d 1116, 1118 (5th Cir. 1993).
Under § 4A1.3, "[i]f reliable information indicates that the
criminal history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes, the court
may consider imposing a sentence departing from the otherwise
applicable guideline range." See § 4A1.3, p.s. If the district
court departs upward, it must state the specific reason for doing
so. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en
banc), cert. denied, 115 S. Ct 1969 (1995). The inadequacy of a
defendant's criminal history category is an acceptable basis for
departure. United States v. Laury, 985 F.2d 1293, 1310 (5th Cir.
1993)(defendant's 20 criminal history points well above the 13
required to place him in criminal history category VI). Sentencing
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courts have wide discretion in determining the extent of the
departure. United States v. Moore, 997 F.2d 30, 37 (5th Cir.),
cert. denied, 114 S. Ct. 647 (1993).
We have affirmed upward departures based on a defendant's
inadequate criminal history category. See Ashburn, 38 F.3d at 809
(district court provided adequate reasons for departure); United
States v. Ford, 996 F.2d 83, 87-88 (5th Cir. 1993) (departure
upheld on basis of uncounted prior convictions), cert. denied, 114
S. Ct. 704 (1994); United States v. Carpenter, 963 F.2d 736, 743-45
(5th Cir.)(same), cert. denied, 113 S. Ct. 355 (1992). See also
Pennington, 9 F.3d at 1118-19 (district court's reasons warranted
departure, but remanded because district court did not follow
proper methodology).
On the other hand, we have vacated sentences when the district
court failed expressly to articulate the reasons for its upward
departure. See, e.g., United States v. Martinez-Perez, 916 F.2d
1020, 1024-25 (5th Cir. 1990); United States v. Jones, 905 F.2d
867, 870 (5th Cir. 1990); United States v. Lopez, 871 F.2d 513, 515
(5th Cir. 1989). In Martinez-Perez, the district court stated only
that the Guidelines did not take into consideration the defendant's
criminal involvement; the court did not provide any further
explanation why the defendant's Criminal History Category under the
Guidelines was inadequate. 916 F.2d at 1024-25. In Jones, the
district court bypassed a criminal history category without
explanation and without stating why that category was inadequate.
905 F.2d at 870. We stated in Jones that the district court must
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identify specific aspects of the defendant's criminal history that
are not adequately considered by the Guidelines, noting
nevertheless that the exclusion of prior convictions that are over
ten years old might constitute a valid explanation for an upward
departure. Id. at 870 n. 4. In Lopez, we held that the district
court erred in departing upward to Category V from Category I
without considering the intermediate categories and explaining why
the intermediate categories were inadequate. 871 F.2d at 515.
The PSR notes that White's criminal history may not be
adequately reflected by his criminal history category as calculated
under the Guidelines. The PSR provides in pertinent part:
It is noted that the defendant has a
history of criminal involvement which began at
age 23. There are three assault charges and a
charge of non-support which were not given
criminal history points due to the age of the
convictions. Had each of these convictions
been given criminal history points, the
defendant's criminal history score would have
been 6, which would have resulted in a
criminal history category of III and a
guideline range of 70 to 87 months.
At the sentencing hearing, the district court asked the
probation officer to explain how the court could depart upward
based on an inadequate criminal history under the Guidelines. The
following discussion occurred:
THE COURT: Ms. Johnson, explain to me your
understanding of how I can depart upward with
a grossly understated criminal history?
MS. JOHNSON: Based on Section 4A1.3 of the
guidelines, Your Honor, because his criminal
history is understated, the Court can take
into account offenses which were not scored.
Had those offenses been scored, he would have
been at a range of 76 [sic].
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THE COURT: Six?
. . . .
MS. JOHNSON: It would have been total score,
total history category of 6, excuse me,
category 3, with a range of 70 to 87 months.
THE COURT: I find, Mr. White, that your
criminal history category is grossly
understated and that had those prior
convictions been counted, you would have been
at a criminal history category 3.
The district court went on to state that the applicable range of
imprisonment was 70 to 87 months. This range was based on the
upward departure. In so doing, the district court adopted for its
departure the reason articulated in the PSR by the probation
officer -- that White had prior convictions which were not counted
in calculating his criminal history category under the Guidelines.
The district court then granted the government's motion for a
downward departure based on White's substantial assistance, but
sentenced White to 50 months of imprisonment instead of 32 months
as recommended by the government. The court's upward and downward
departures thus resulted in a net decrease from the original
sentencing range of 63 to 78 months.
Whether the district court provided sufficient reasons for its
upward departure presents a close question. As noted, the court
based its departure on the reasons articulated by the probation
officer at the sentencing hearing -- that White had prior
convictions which were not counted in calculating his criminal
history category under the Guidelines. The PSR states that White
has two prior convictions for assault and one prior conviction for
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failure to pay child support, none of which were counted in
determining his criminal history category. The district court did
not discuss in detail, however, the facts underlying the prior
convictions on which it based its upward departure; it merely
expressed the conclusion that White's criminal history category was
"grossly understated."
White does not challenge the factual basis of these prior
convictions. A review of the transcript of the sentencing hearing
demonstrates that the district court based its upward departure on
White's prior convictions which were not counted in calculating his
criminal history category under the Guidelines. Again, we noted in
Jones that uncounted prior convictions could be a valid reason for
making an upward departure. Jones, 905 F.2d at 870 n.4. We
therefore affirm the district court's upward departure because the
sentencing transcript provided an acceptable reason for the
district court's action.
AFFIRMED.
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