United States v. Hunter

105 F. App'x 551

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 19, 2004
• Docket: 03-30676
• Status: Unpublished

Opinion

PER CURIAM: *

Keith Hunter appeals the sentence imposed after he pleaded guilty to three counts of trafficking in cocaine, heroin, and marijuana. He contends that there was no valid basis for the district court’s upward departure from the recommended sentencing guideline range based on the facts of his particular case and that the degree of departure was excessive. We affirm.

We review de novo whether there was a sufficient basis for the departure, while the degree of departure is reviewed for abuse of discretion. 1

The district court appears to have relied in part on Hunter’s extensive prior arrest record, contrary to U.S.S.G. § 4A1.3. However, any error was harmless. The district court properly relied on the similarity of Hunter’s prior convictions to the present conviction, Hunter’s failure to satisfy parole requirements, and the lack of a deterrent effect of prior lesser punishments. 2 The court’s reliance on these valid and sufficient reasons convinces us that the court would have imposed the same sentence even without reliance on any invalid factors. 3

We also conclude that the degree of departure, from a range of 33-41 months to 87 months, was not unreasonable or an abuse of discretion. 4

The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.

1 . See 18 U.S.C. § 3742(e); United States v. Bell, 371 F.3d 239, 244 (5th Cir.2004).

2 . See United States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir.1989) (similarity); United States v. Lee, 358 F.3d 315, 328-29 (5th Cir.2004) (prior lenient penalties); United States v. Ford, 996 F.2d 83, 87-88 (5th Cir.1993) (“repeated parole violations”).

3 . Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

4 . Cf United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir.1994); United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995).