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United States v. Fields , 250 F. App'x 104 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2007
No. 07-50305
Summary Calendar               Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALVIN EARL FIELDS
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-180-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alvin Earl Fields appeals the sentence imposed following his guilty plea
conviction for possessing a firearm subsequent to a felony conviction. Fields’
60 month sentence included an upward departure from criminal history category
VI pursuant to U.S.S.G. § 4A1.3. Fields argues that the district court failed to
clearly articulate the reasons in support of its upward departure.
*
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should not be published and is not precedent except under the limited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.
No. 07-50305
Pursuant to United States v. Booker,
    543 U.S. 220
     (2005), this court
ultimately reviews sentences for reasonableness. United States v. Smith,
    440 F.3d 704
    , 706 (5th Cir. 2006). An upward departure from an advisory guideline
sentence is normally reviewed for an abuse of discretion. United States v. Smith,
    440 F.3d 704
    , 707 (5th Cir. 2006). Because Fields did not object to the district
court’s lack of reasons for the departure, we review for plain error. See United
States v. Gracia-Cantu,
    302 F.3d 308
    , 310 (5th Cir. 2002). Regardless whether
this court applies the abuse of discretion or the plain error standard of review,
Fields cannot establish that the district court committed reversible error.
The district court indicated at sentencing that it was basing its decision
to upwardly depart based upon the information contained in the presentence
investigation report (PSR), which indicated that Fields’ criminal history category
substantially under represented his prior offenses or the likelihood that he
would commit other crimes in the future. See U.S.S.G. § 4A1.3(a). The court’s
written statement of reasons similarly relied upon § 4A1.3(a). The PSR detailed
that Fields had 14 adult convictions by the time he reached age 24. Fields’
convictions, for which he was assessed criminal history points, included
possession of marijuana, possession of controlled substances, theft, failure to
identify, and criminal trespass. In addition, Fields was facing several state
charges when he committed the instant offense. In light of Fields’ criminal
history category and the nature of Fields’ prior offenses, the district court did not
reversibly err in determining that Fields’ prior criminal history was under
represented. See United States v. Zuniga-Peralta,
    442 F.3d 345
    , 348-49 (5th
Cir.) cert. denied,
    126 S. Ct. 2954
     (2006).
Moreover, the extent of the upward departure was reasonable. The
district court’s 60-month sentence was 23 months more than the top of the
advisory guidelines range but well below the 10-year statutory maximum for the
offense. See United States v. Simkanin,
    420 F.3d 397
    , 419 (5th Cir. 2005);
United States v. Daughenbaugh,
    49 F.3d 171
    , 175 (5th Cir. 1995).
2
No. 07-50305
Accordingly, the judgment of the district court is AFFIRMED.
3