United States Court of Appeals

for the Fifth Circuit

No. 21-30547

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Danny Ray Wilson, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:20-CR-295-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Danny Ray Wilson pleaded guilty to possession of a firearm by a 

convicted felon, in violation of 18 U.S.C. § 922(g)(1). The presentence 

report (PSR) identified “criminal history adequacy” as a basis for an upward 

departure under U.S.S.G. § 4A1.3 because Wilson had an “egregious, serious 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2022

Lyle W. Cayce

Clerk

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No. 21-30547

2

criminal record” and because he “pose[d] a violent risk to the public.” The 

district court departed from the recommended guidelines range of 41 to 51 

months and imposed a sentence of 72 months of imprisonment.

Wilson argues on appeal that his 72-month sentence is substantively 

unreasonable. Specifically, he argues that in departing from the guidelines 

range under § 4A1.3, the district court ignored the fact that he had already 

received criminal history points for his prior criminal convictions and gave 

significant weight to conduct underlying charges that were pending or had 

been dismissed. The district court’s decision to impose an upward 

departure, as well as the extent of that departure, are reviewed for an abuse 

of discretion. United States v. Zelaya-Rosales, 707 F.3d 542, 546 (5th Cir. 

2013).

At sentencing, the district court explained that reliable information 

suggested that Wilson’s criminal history category substantially 

underrepresented the seriousness of his criminal history and his likelihood of 

recidivism. See § 4A1.3(a)(1). The court then recounted Wilson’s lengthy 

criminal history, which included felony convictions for obstruction of justice 

and illegal possession of a firearm, as well as two felony burglary convictions, 

a felony conviction for illegal use of a dangerous weapon, and a misdemeanor 

conviction for violating a protective order, which involved Wilson’s wife. 

Wilson is correct that each of these convictions received criminal history 

points, but the district court was nonetheless entitled to find that Wilson’s 

criminal history score, and the resulting criminal history category of VI, did 

not adequately reflect the seriousness of his conduct or his risk of recidivism. 

See § 4A1.3(a)(1).

The district court also found the guidelines sentence inadequate based 

on Wilson’s unscored criminal history, which included charges that were 

pending or had been dismissed. “It is well-established that prior criminal 

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conduct not resulting in a conviction may be considered by the sentencing 

judge.” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).

Wilson complains that the district court erred in relying on 

unadjudicated conduct because “the PSR makes no attempt to explain why 

the charges were dismissed.” Without such information, Wilson argues, the 

district court could not determine “whether the allegations of fact contained 

in the charges were reliable.” Wilson, however, filed no objections to the 

PSR and did not otherwise challenge any of the facts underlying his dismissed 

or pending charges. “Because no testimony or other evidence was submitted 

to rebut the information in the PSR, the district court was free to adopt the 

PSR’s findings without further inquiry or explanation.” United States v. 

Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). Further, as Wilson 

acknowledges, the PSR’s factual allegations underlying the dismissed and 

pending charges were drawn from police reports, and this court has held that 

“the district court may properly find sufficient reliability on a [PSR] which is 

based on the results of a police investigation.” United States v. Vela, 927 F.2d 

197, 201 (5th Cir. 1991).

Based on the foregoing, the judgment of the district court is 

AFFIRMED.

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