* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30759

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MALCOLM SCOTT GUILLORY

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana 

USDC No. 2:05-CR-20142-1

Before JOLLY, DENNIS and PRADO, Circuit Judges.

PER CURIAM:*

Malcolm Scott Guillory appeals the sentence of 180 months imposed by the

district court on remand. The court departed upward from the advisory range

of 110 to 137 months on the basis that Guillory’s criminal history category of VI

grossly underrepresented his criminal history. Guillory also complains that the

court did not articulate sufficient reasons for departing upward. 

We review sentences for reasonableness, which, in the context of an

upward departure, ordinarily requires the application of an abuse-of-discretion

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-30759

2

standard. United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). A

sentencing court does not abuse its discretion in deciding to upwardly depart

when its reasons for doing so (1) advance the objectives set forth in 18 U.S.C.

§ 3553(a)(2); and (2) are justified by the facts of the case. United States v.

Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006).

Where a court does not depart for impermissible reasons, its decision that a

departure is warranted and the extent of the departure are entitled to great

deference. Saldana, 427 F.3d at 312. However, because Guillory did not object

to the upward departure or to the sufficiency of the district court’s reasons, we

review for plain error. See United States v. Jones, 489 F.3d 679, 681 (5th Cir.

2007). 

The Guidelines expressly authorize a district court to depart upward based

on a finding thatthe criminal history category substantially underrepresents the

seriousness ofthe defendant’s criminal past or the likelihood that he will commit

other crimes. See U.S.S.G. § 4A1.3(a)(1), p.s.; see also Zuniga-Peralta, 442 F.3d

at 347. As the district court noted, Guillory had a significant criminal history,

earning him 22 points, nine greater than necessary for a criminal history

category of VI. Guillory’s adult criminal convictions date back to 1989. Further,

more than one of his convictions involved assaultive behavior, including his 1993

simple burglary conviction, his 2000 conviction for possession of cocaine, and his

2004 conviction for attempting to disarm a peace officer. Given Guillory’s

history, the district court reasonably concluded that a criminal history category

of VI was insufficient to achieve the sentencing goals of, inter alia, deterrence

and protection of the public.

In addition, the district court gave adequate reasons for the departure,

citing specific portions of Guillory’s criminal history and specific sentencing

considerations under § 3553(a). Further, the extent of the departure was not

unreasonable. See United States v. Smith, 417 F.3d 483, 492-93 and n. 40 (5th

Cir. 2005). Accordingly, the district court committed no error, plain or
No. 07-30759

3

otherwise, with respect to its decision to depart, its reasons for the departure,

or the extent of the departure. 

The judgment of the district court is AFFIRMED.