United States v. Wesley Yellow Horse

Opinion

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No. 96-2983 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Wesley L. Yellow Horse, * * [UNPUBLISHED] Appellant. *

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Submitted: November 6, 1996

Filed: November 12, 1996 ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________

PER CURIAM.

Wesley L. Yellow Horse pleaded guilty to one count of larceny in violation of 18 U.S.C. §§ 661 and 1153. At sentencing, the district court1 reviewed an extensive list of convictions not used in computing the criminal history category and determined the category should be V rather than IV. Based on a resulting sentencing range of 6 to 12 months, the court imposed a 12-month prison term. Yellow Horse appeals, challenging the upward departure.

The district court did not abuse its discretion by departing upward on the basis of Yellow Horse's extensive criminal history, most of which was excluded from the criminal history calculation because it consisted of tribal offenses or fell outside the

1 The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota. Guidelines' time limits. See U.S.S.G. § 4A1.3, p.s. (departure warranted when criminal history category significantly under-represents defendant's criminal history or likelihood of future criminal activity); United States v. Poe, 96 F.3d 333, 334 (8th Cir. 1996) (standard of review); United States v. Andrews, 948 F.2d 448-49 (8th Cir. 1991).

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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