United States v. Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11437 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PORFIRIO JOSE GARCIA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CR-130-Y - - - - - - - - - -

June 16, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Porfirio Jose Garcia appeals the district court’s decision

to depart upward in sentencing him for possession with intent to

distribute marijuana and for being a felon in possession of a

firearm. The district court departed upward on the basis that

Garcia’s criminal history category did not adequately reflect the

seriousness of his past criminal conduct or the likelihood that

he would commit other crimes. See U.S.S.G. § 4A1.3. The

information in the presentence investigation report (PSR)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11437 -2-

indicated that although Garcia was only 22 years old, he had a

lengthy history of violent crimes and gang related criminal

activity. The PSR noted that had Garcia’s juvenile offenses been

scorable, he would have been placed in a criminal history

category of VI instead of III, with a guideline range of

imprisonment of 77-96 months.

In light of the information in the PSR, the district court

did not err in sentencing Garcia to 60 months of imprisonment on

the possession charge, to run concurrently with 84 months of

imprisonment on the firearm charge. See United States v.

McDowell, 109 F.3d 214, 216 (5th Cir. 1997).

Garcia also argues that he did not receive sufficient notice

prior to sentencing of the possibility of an upward departure.

The PSR’s reference to criminal history as a potential ground for

upward departure satisfied the notice requirement. See United

States v. Doucette, 979 F.2d 1042, 1047 n.4 (5th Cir. 1992).

AFFIRMED.