United States v. Marshall

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30217 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID J. MARSHALL,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana (96-CR-50060-1)

August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

For his guilty-plea conviction for bank robbery, David J.

Marshall appeals his sentence of 150 months’ imprisonment,

resulting from an upward departure from the guideline range.

An upward departure is reviewed only for an abuse of

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

1994) (en banc), cert. denied, 514 U.S. 1113 (1995). If the

district court gives acceptable reasons for the departure and it is

reasonable, we will affirm. Id.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Marshall contends the district court gave inadequate departure

reasons. The court found Marshall’s criminal history score (V)

underrepresented his criminal history and inadequately reflected

his propensity for recidivism. See U.S.S.G. § 4A1.3. At

sentencing, Marshall admitted his involvement in 12 prior armed

bank robberies. Only five were prosecuted to conviction, and they

resulted in a three-year sentence. Within approximately three

months after Marshall’s release from prison, he committed the

present offense. Marshall was 24 years old at the time of

sentencing. In the light of this record, the court’s departure

reasons were adequate. See United States v. Rosogie, 21 F.3d 632,

634 (5th Cir. 1994).

Marshall next claims the court failed to comply with the

requisite methodology for determining the extent of the departure.

As is well-established, we do not “require the district court to go

through a ritualistic exercise in which it mechanically discusses

each criminal history category [or offense level] it rejects en

route to the category [or offense level] that it selects.” United

States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc). As

Marshall concedes, it is apparent from the record that the district

court utilized a seven-step sequence to arrive at a guideline range

containing the 150-month sentence. Because we can ascertain a

basis by which the district court rejected category VI and

intermediate offense levels to reach the sentence, its implicit

methodology was sufficient. See id.

2 Finally, Marshall maintains the extent of the departure was

unreasonable (from a range of 63 to 78 months up to the 150

months). In the light of the aforementioned evidence of Marshall’s

criminal conduct, which was not reflected in the criminal history

calculation, and Marshall’s propensity for recidivism, the district

court did not abuse its discretion. See United States v.

Daughenbaugh, 49 F.3d 171, 175 (5th Cir.), cert. denied, 516 U.S.

900 (1995); Ashburn, 38 F.3d at 810.

AFFIRMED