United States v. Richard

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 8, 2002
• Docket: 01-20326
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20326 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TONY CHARLES RICHARD,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas (H-00-CR-785-1) - - - - - - - - - - January 4, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Tony Charles Richard appeals his sentence,

following a guilty plea, for two counts of unauthorized use of an

access device, in violation of 18 U.S.C. § 1029(a). Richard

contends that the district court erred in departing upwardly under

the Sentencing Guidelines and imposing a prison term of 54 months,

when the Probation Office had calculated a guideline imprisonment

range of 30 to 37 months.

The district court did not abuse its discretion in upwardly

departing from the applicable guideline range. United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc). In concluding

that Richard’s criminal history category did not adequately reflect

the seriousness of his past criminal conduct, the court was

entitled to rely on Richard’s prior arrests for unadjudicated

offenses, as detailed in Richard’s Presentence Report (“PSR”).

See U.S.S.G. § 4A1.3. Relying on PSR information that Richard has

not shown to be “materially untrue,” the court determined that

Richard had attempted to avoid prosecution for these acts.

See United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992);

U.S.S.G. § 6A1.3. The court also concluded that recidivism was

likely, based on Richard’s having been charged with and convicted

of repeated offenses involving currency theft and credit cards,

offenses that are similar to his crimes of conviction in the

instant case. See United States v. Harrington, 114 F.3d 517, 519-

20 (5th Cir. 1999).

AFFIRMED.