* The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 4 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAVID DEWAYNE SHORES, Defendant - Appellant. No. 01-6375 (D.C. No. 01-CR-80-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and HARTZ , Circuit Judges.

In this direct criminal appeal, David Dewayne Shore s argues that the district court erred in departing from the sentenci ng range recommended by the Sentencing Guidelines Manual. We have jurisdiction pursuant to 18 U.S.C.- 2 -

§ 3742(a)(2) and 28 U.S.C. § 1291. Because we conc lude that the district court did not abuse its discretion, we affirm.
I In February, March, and April of 2001, Shores commi tted five unarmed bank robberies in Oklahoma City, Oklahoma. In each instance, Shores would enter the bank, approach the teller, and demand mon ey while suggesting that he had a gun. He was arrested in early April 2001 and indicted for unarmed robbery of five federally insured banks in violation of 18 U.S.C. § 2113(a). Shores waived his right to a jury trial and pled guilty to all five counts of the indictment. He did not enter into a plea agreement and retains all statutory rights of appeal. The district court sentenced him to 188 months’ imp risonment. To arrive at its sentence, the court departed upwar d from criminal history category VI, offense level 26, to criminal history category VI, offense level 29, reasoning that the guidelines computation did not a dequately reflect the seriousness of Shores’s past criminal conduct and t hat an upward departure was necessary. Specifically, the court decided that a number of prior convictions—for burglary, possession of marijuana, possession of ba rbiturates, unlawful delivery of a controlled drug, unlawful distribution of a co ntrolled substance, larceny of a controlled dangerous substance, assault and battery with a dangerous weapon, and endangering a child—that were not considered in the criminal history computation- 3 -

merited the upward departure. Without the upward d eparture, Shores’s guideline range would have been 120 to 150 months. Shores ob jected to this exercise of the district court’s discretion and on appeal seeks to have the upward departure reversed.
II Under the sentencing guidelines, “stale” prior sent ences are ordinarily excluded from calculation of a defendant’s criminal history category. See U.S.S.G. § 4A1.2(e)(1), (3) (excluding from the cal culation of a defendant’s criminal history category all sentences exceeding t hirteen months if those sentences were not imposed within fifteen years of the commencement of the instant offense); id. § 4A1.2(e)(2), (3) (excluding from the calculation any other prior sentence that was not imposed within ten year s of the instant offense). However, the guidelines specifically contemplate up ward departure from an otherwise applicable guideline range “if reliable i nformation indicates that the criminal history category does not adequately refle ct the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3. A factor relevan t for upward departure is the existence of “prior sentence(s) not used in computi ng the criminal history category.” Id. § 4A1.3(a); see also id. § 4A1.2, cmt. n.8 (“If the court finds that a sentence imposed outside this time period is eviden ce of similar, or serious- 4 -

dissimilar, criminal conduct, the court may conside r this information in determining whether an upward departure is warrante d under § 4A1.3 (Adequacy of Criminal History Category).”). To determine whether the district court abused its discretion in departing from the guidelines, we evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove th e defendant from the applicable guideline heartland thus warran ting a departure, (3) whether the record sufficiently supp orts the factual basis underlying the departure, and (4) whe ther the degree of departure is reasonable. United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997). Although w e need not defer to the district court’s resolution o f the first question because it is primarily a legal issue, all four steps of this dep arture-review analysis are subject to a “unitary abuse of discretion standard.” Id. Whether a factual circumstance supporting a departu re is a permissible departure factor is a legal question, and we need n ot defer to the district court on this point. Koon v. United States , 518 U.S. 81, 100 (1996); Collins , 122 F.3d at 1303. The guidelines specifically encourage depart ure where a defendant’s criminal history category does not adequately refle ct the seriousness of his past conduct or the likelihood that the defendant will c ommit other crimes. U.S.S.G. § 4A1.3. We have held that reliance upon the enume rated departure factors of- 5 -

§ 4A1.3 is permissible. United States v. Bartsma , 198 F.3d 1191, 1196 (10th Cir. 1999) (holding that a set of stale prior sentences is a permissible departure factor). Thus, the district court’s decision to de part was based upon permissible factors. We must give “substantial deference” to the distric t court’s resolution of the second question—whether the departure factors i t relied upon remove the defendant from the applicable guideline’s heartland under the facts of the case. Collins , 122 F.3d at 1303. Applicable guidelines state th at “[t]he court may . . . conclude that the defendant’s criminal history was significantly more serious than that of most defendants in the same criminal history category.” U.S.S.G. § 4A1.3. Given Shores’s multiple uncounted convictions for arange of serious conduct including two crimes of violence, we conclude that the district court has not exceeded the bounds of permissible choice in findin g that Shores’s criminal history category does not adequately reflect the se riousness of his past criminal conduct or the likelihood that he will commit other crimes. Whether the record sufficiently supports the factua l basis underlying the departure is a question we review for clear error. See United States v. Maldonado-Campos , 920 F.2d 714, 720 (10th Cir. 1990); see also United States v. Talk , 158 F.3d 1064, 1071 (10th Cir. 1998) (noting thatthe clear-error standard articulated in Maldonado-Campos is unaltered by Koon ). Shores did not contest- 6 -

the facts of his prior convictions at his sentencin g hearing. Thus, it was not clear error for the district court to rely on them. See United States v. Yates , 22 F.3d 981, 989 (10th Cir. 1994) (noting that only facts t hat are contested during the sentencing hearing must be established by a prepond erance of the evidence). In making a determination as to the final question, whether the degree of departure is reasonable, we consider the district court’s reasons for imposi ng the particular sentence together with factors such as: “the serio usness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing patt ern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” Collins , 122 F.3d at 1308–09 (quoting United States v. Whi te , 893 F.2d 276, 278 (10th Cir. 1990)). In calibrating the degree of de parture, a district court must provide an explanation that does more than “restate the justification for the upward departure.” United States v. Whiteskunk , 162 F.3d 1244, 1254 (10th Cir. 1998). Rather, it must employ a “reasonable method ology hitched to the sentencing Guidelines, including extrapolation from or analogy to the Guidelines.” Collins , 122 F.3d at 1309 (quotations omitted). The distr ict court noted that Shores would have eleven additional crim inal history points if the stale convictions were countable. It reasoned that given Shores’s time-barred careeroffender qualifying felony convictions, the career- offender sentencing guidelines more adequately reflected an appropriate offense le vel. The court also noted the- 7 -

gravity of Shores’s criminal conduct as well as the need to deter others and prevent criminal victimization. Thus, in arriving at the sentence, the district court took account of the sentencing pattern and policies of the guidelines and reached a reasonable determination in light of the factual circumstances presented to it. We conclude that the district court’s rationale and conclusions were reasonable.
III Shores’s sentence is AFFIRMED

. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge