United States v. Clark

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 2, 2003
• Docket: 02-10427
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10427 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

TELASA CLARK, III

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-177-5-A -------------------- December 30, 2002

Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Telasa Clark , III (“Clark”), appeals the sentence imposed

following his guilty plea to one count of bank robbery and two

counts of using and carrying a firearm during the commission of a

crime of violence. The district court departed upward from the

sentencing range calculated under the United States Sentencing

Guidelines to impose an aggregate 600-month sentence for the

offenses of conviction.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10427 -2-

Clark has failed to establish that the aggravated robbery

for which he was convicted in state court and the offenses of

conviction were part of a “common scheme or plan” within the

meaning of U.S.S.G. § 4A1.2(a)(1); he therefore has shown no

error in the use of the state conviction in his criminal history

score. See United States v. Garcia, 962 F.2d 479, 482 (5th Cir.

1992), abrogated in part, on different grounds, by Buford v.

United States, 532 U.S. 59, 64-66 (2001); United States v. Ford,

996 F.2d 83, 86 (5th Cir. 1993).

Clark has failed to show that the district court clearly

erred in adding three levels to the offense level because the

court determined that one of the robbery victims sustained more

than bodily injury but less than severe bodily injury. See

U.S.S.G. § 2B3.1(b)(3)(D); United States v. Moore, 997 F.2d 30,

37 (5th Cir. 1993).

Finally, Clark has failed to show plain error in the

district court’s decision to depart upward in light of Clark’s

admitted extensive history of armed robbery; such a departure is

authorized by U.S.C.G. § 4A1.3(e), the district court explained

its reasons for departure, and Clark has not shown that the

extent of the departure was unreasonable. See United States v.

Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc); United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en

banc).

AFFIRMED.