United States v. Ferreira ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2005
Charles R. Fulbruge III
No. 04-41673 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM FERREIRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 2:04-CR-180-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
William Ferreira appeals the sentence imposed following his
guilty-plea conviction of passing counterfeit money in violation of
18 U.S.C. §§ 2 and 473. Ferreira’s contention that the district
court erroneously relied on his equivocal acceptance of responsi-
bility as a basis for departure after giving him credit for accep-
tance of responsibility is without merit. The district court made
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
No. 04-41673
-2-
it plain that the departure was based on its conclusion that Fer-
reira’s criminal history category of VI did not adequately reflect
the seriousness of his criminal history or the likelihood of recid-
ivism in light of his Ferreira’s forty criminal history points and
the similarity of the instant offense to past offenses. Under-
representation of criminal history is a proper basis for departure.
United States v. Smith, 417 F.3d 483, 491 (5th Cir. 2005).
As Ferreira contends, the district court did state that the
equivocal nature of his acceptance of responsibility when speaking
with the probation officer was another reason for departure. The
district court made it plain, however, that the criminal history
score was the primary reason supporting the departure and stated
that it would have imposed the same departure even if Ferreira had
been truthful when speaking to the probation officer. Thus, we
need not determine whether the court erred, because any purported
error was harmless. See United States v. Akpan, 407 F.3d 360, 376-
77 (5th Cir. 2005); see also United States v. Cade, 279 F.3d 265,
273 (5th Cir. 2002).
Although Ferreira contends that the departure should be re-
viewed for reasonableness, he does not argue that the departure was
unreasonable; therefore, he has abandoned any such argument. See
United States v. Lucien, 61 F.3d 366, 370 (5th Cir. 1995). In any
event, the extent of the departure was reasonable. See Smith, 417
F.3d at 491-92. Accordingly, the judgment of sentence is AFFIRMED.