United States v. Brown ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20103
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES E. BROWN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CR-86-1)
_________________________________________________________________
October 15, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
James E. Brown appeals the sentence imposed following his
guilty plea to possession of counterfeit securities. He contends
that the district court abused its discretion in departing upward
pursuant to U.S.S.G. § 4A1.3, which provides for a departure when
the defendant’s criminal history category significantly under
represents his history or the likelihood that he may commit further
crimes.
*
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this opinion should not be published and is not precedent except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.
To the extent Brown asserts that, during sentencing, the
district court improperly referenced Brown’s 15 prior juvenile
arrests and erroneously stated that Brown was involved as an adult
in grand theft, it is doubtful that Brown preserved this issue.
After the district court pronounced sentence, Brown’s counsel made
two objections: one regarding the fine imposed and the other
asserting the court should have applied a criminal history category
of IV rather than V. In an earlier objection at sentencing to the
upward departure motion, Brown’s counsel contended that the court
should not rely upon Brown’s juvenile offenses (as opposed to
arrests) in considering an upward departure. Brown’s counsel also
filed written objections to the pre-sentence investigation report;
only two were relevant to Brown’s criminal history. The first
asserted the dispositions of Brown’s arrests for grand theft and
assault were not unknown, as alleged in the presentence
investigation report, and that Brown was acquitted of these
charges. The second asserted the information regarding Brown’s 15
prior juvenile arrests was erroneous as, contrary to the pre-
sentence investigation report, Brown did not provide such
information to the Texas Department of Criminal Justice,
Institutional Division.
Arguably, none of these objections properly preserved Brown’s
current assertion regarding the reference by the district judge to
Brown’s juvenile arrests and the assertion by the district judge
2
that the grand theft was committed as an adult. If not properly
preserved this issue would be reviewed only for plain error. See,
e.g., United States v. Maldonado, 42 F.3d 906, 909-13 (5th Cir.
1995)(applying plain error standard of review where defendant moved
to suppress evidence on different grounds in the district court).
Nevertheless, even if this issue was properly preserved, we would
still affirm Brown’s sentence for the following reasons.
We find no clear error in the district court’s finding that
Brown’s criminal history category under represented the seriousness
of his history, which included adult criminal convictions that were
not counted in computing his criminal history score. See United
States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993) (reviewing for
clear error a finding of fact that a defendant’s “criminal history
category did not adequately reflect the seriousness of his past
criminal conduct”). We also perceive no abuse of discretion in the
court’s decision to depart upward because of Brown’s extensive
criminal history. See id. Although, as mentioned previously, the
court referenced prior arrests that may not have resulted in
convictions, such references do not entitle Brown to relief in
light of the valid bases for the upward departure. See United
States v. Kay, 83 F.3d 98, 101 (5th Cir.) (a “sentence may be found
to be reasonable even though one or more of the reasons assigned in
justification of the departure be deemed invalid, provided the
3
remaining reasons suffice to justify the departure”), cert. denied,
519 U.S. 898 (1996).
AFFIRMED
4