United States v. Davis

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60972 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES DAVIS, also known as “Kansas City”,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (1:01-CR-16-ALL-P) _________________________________________________________________ July 11, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*

James Davis appeals the sentence imposed following his guilty

plea to one count of bank fraud. He contends that the Government

waived its right to file a motion for upward departure by failing

to file written objections to the presentence report (PSR). He

also asserts that the district court abused its discretion in

departing upward pursuant to U.S.S.G. § 4A1.3, which provides for

a departure when the defendant’s criminal history category

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. significantly underrepresents his past criminal conduct or the

likelihood that he may commit further crimes.

Whether the Government waived its ability to move for an

upward departure by failing to object to the PSR is a question of

law reviewed de novo. See, e.g, United States v. Knight, 76 F.3d

86, 87 (5th Cir.), cert. denied, 518 U.S. 1011 (1996). An upward

departure is reviewed for abuse of discretion, see United States v.

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

514 U.S. 1113 (1995); and the finding that a defendant’s criminal

history category inadequately represents the seriousness of his

past criminal conduct is reviewed for clear error, see United

States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993).

Based on our review, the Government was not required to lodge

objections to the PSR in order to preserve its right to move pre-

sentencing for an upward departure, particularly because the PSR

set forth a possible basis for departure. See United States v.

Bachynsky, 949 F.2d 722, 733-34 (5th Cir. 1991), cert. denied, 506

U.S. 850 (1992). And, Davis conceded at sentencing that he was not

prejudiced by the alleged untimely filing of the motion (ten days

prior to sentencing).

We further hold: the district court did not clearly err in

determining that Davis’ criminal history category underrepresented

the seriousness of his past criminal conduct; and there was no

abuse of discretion in departing on that basis. See Laury, 985

2 F.2d at 1310. Under the circumstances presented to the district

court, the extent of the upward departure was reasonable. See

United States v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996), cert.

denied, 519 U.S. 974 (1996).

AFFIRMED