United States v. Brown

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-31077 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERENCE BROWN, also known as Terance G. Brown,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CR-39-ALL-C _________________________________________________________________ July 13, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Terence Brown has appealed the sentence imposed by the

district court following his guilty plea conviction for unlawful

possession of a firearm.

Brown asserts that the upward departure was improperly based

on his arrest record and that the district court improperly

considered prior convictions that were more than fifteen years old.

See U.S.S.G. § 4A1.2(e). A district court’s decision to depart

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. from the sentencing guidelines is generally reviewed for abuse of

discretion. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir.

1994)(en banc).

In its reasons for judgment, the district court made it clear

that it looked not at the mere fact of prior arrests, but, rather,

that it looked to the violent nature and frequency of Brown’s prior

criminal conduct. In determining whether an upward departure is

warranted, a district court may consider older prior convictions

whose sentences are evidence of similar, or serious dissimilar,

criminal conduct. U.S.S.G. § 4A1.2, comment. (n.8); see also

United States v. Harrington, 114 F.3d 517, 520 (5th Cir. 1997);

United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993).

The district court did not abuse its discretion in considering

Brown’s older prior convictions and the violent nature of Brown’s

prior criminal conduct in deciding to depart upward from the

sentencing guideline.

Brown also asserts that the district court erred in upwardly

departing from the applicable sentencing guideline range because it

did not expressly state that it had considered intermediate

criminal category histories. Because Brown failed to raise this

argument below, it is reviewed for plain error. See United States

v. Alford, 142 F.3d 825, 830 (5th Cir. 1998).

2 The district court based its upward departure on the grounds

that Brown’s criminal history category did not adequately reflect

the seriousness or violent nature of Brown’s past criminal conduct.

The district court’s reasons for departure were acceptable and

adequately explained. See U.S.S.G. § 4A1.3; United States v.

Chappell, 6 F.3d 1095, 1102 (5th Cir. 1993); Ashburn, 38 F.3d at

809.

In the light of the foregoing, the district court did not err

in upwardly departing from the applicable guideline range.

Ashburn, 38 F.3d at 807. The judgment of the district court is

A F F I R M E D.