IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40426
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD BERRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:94-CR-62-6
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(October 17, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Berry contends that the district court failed to give
acceptable reasons justifying its upward departure and that the
departure was unreasonable. The decision to depart from the
Sentencing Guidelines is reviewed for abuse of discretion.
United States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993). An
upward departure will be affirmed if the district court offers
acceptable reasons for the departure and the departure is
*
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that this opinion should not be published.
No. 95-40426
-2-
reasonable. United States v. Lambert, 984 F.2d 658, 663 (5th
Cir. 1993) (en banc).
Under U.S.S.G. § 4A1.3, "[i]f reliable information indicates
that the criminal history category does not adequately reflect
. . . the likelihood that the defendant will commit other crimes,
the court may consider" departing from the guidelines.
"[W]hether the defendant was pending trial or sentencing on
another charge at the time of the instant offense" is such
information. See § 4A1.1(d).
The district court upwardly departed because Berry continued
to traffic in crack cocaine while on bond awaiting trial for
trafficking in crack. The reasons for the upward departure
articulated by the district court are findings of fact that this
court reviews for clear error. United States v. Pennington, 9
F.3d 1116, 1118 (5th Cir. 1993). Berry has not shown that the
district court was clearly erroneous in finding that his criminal
history category did not adequately represent his recidivist
tendencies.
With respect to the reasonableness of the departure, the
district court has 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). In this case, the
district court did not abuse its discretion in upwardly departing
from the guidelines and in choosing the next criminal history
category to determine Berry's sentence.
AFFIRMED.