United States v. Marshall

275 F. App'x 306

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 17, 2008
• Docket: 07-10531
• Status: Unpublished

Opinion

PER CURIAM: *

Robert Eon Marshall appeals the 120-month sentence imposed following his guilty plea conviction for mail fraud. Marshall argues that the district court abused its discretion in imposing an upward departure pursuant to U.S.S.G § 4A1.3(a) based on an under-representation of his criminal history and a likelihood of recidivism. He contends that the district court’s reasons for upwardly departing are inadequate and do not support a departure under § 4A1.3(a).

“An upward departure by a district court is not an abuse of discretion if the court’s reasons for departing 1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2) and 2) are justified by the facts of the case.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 548 U.S. 918, 126 S.Ct. 2954, 165 L.Ed.2d 975 (2006) (internal quotation marks and citation omitted). Marshall’s upward departure meets those criteria. The district court considered the factors of § 3553(a) and articulated the objectives served in imposing an upward departure. Marshall’s similar prior offenses, his disregard for court orders, and the use of aliases signify a likelihood of recidivism. The district court did not abuse its discretion. See Zuniga-Peralta, 442 F.3d at 347.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.