UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4310

DONALD EUGENE PUCKETT,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

James P. Jones, District Judge.

(CR-96-30-A)

Submitted: December 30, 1997

Decided: June 22, 1998

Before WILKINS and WILLIAMS, Circuit Judges, and

HALL, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Joseph F. Dene, DENE & DENE, P.C., Abingdon, Virginia, for

Appellant. Robert P. Crouch, Jr., United States Attorney, Rick A.

Mountcastle, Assistant United States Attorney, Abingdon, Virginia,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Eugene Puckett appeals the 188-month sentence he

received after he pled guilty to three counts of being a felon in possession of a firearm, see 18 U.S.C.A. § 922(g)(1) (West Supp. 1998), and

four counts of possession of an unregistered destructive device, see

26 U.S.C. §§ 5861(d), 5871 (1994). Puckett contends that the district

court erred in departing above the applicable guideline range pursuant

to U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995). For the

reasons explained below, we vacate the sentence and remand for

resentencing.

The district court concluded that Puckett's offense level of 28,

combined with his Criminal History Category III, resulted in an applicable guideline range was 97-121 months. Puckett did not receive

criminal history points for 14 of his prior sentence because those sentences were imposed more than ten years before commencement of

instant offenses and were for less than a year and a month imprisonment. See U.S.S.G. § 4A1.2(e). Relying on these prior uncounted sentences, the district court found that Puckett had engaged in a pattern

of serious criminal conduct since the age of 17, that he had 12

uncounted offenses of an assaultive or destructive nature, and that he

had shown an unusual pattern of serious criminality involving alcohol, drugs, firearms, and mental instability. Thus, the district court

concluded that an upward departure pursuant to U.S.S.G.§ 4A1.3 was

appropriate. The court assigned a total of 14 criminal history points

to Puckett's previously uncounted sentences, giving him a total of 18

criminal history points. And, finding that a Criminal History Category

VI was inadequate, the district court departed from offense level 28

to offense level 29, resulting in a guideline range 152-188 months.

The court imposed a sentence at the top of the new range.

A sentencing court is encouraged to depart upward when a defendant's Criminal History Category does not adequately reflect the seri-

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ousness of his past criminal conduct or the likelihood that he will

commit other crimes. See U.S.S.G. § 4A1.3. When a factor being considered as a basis for departure is an encouraged factor, a court must

determine whether or not it has been taken into account by the applicable guideline. See United States v. Brock, 108 F.3d 31, 34 (4th Cir.

1997) (citing Koon v. United States, 116 S. Ct. 2035, 2045 (1996)).

Sentences imposed outside the applicable time period are taken

into account under U.S.S.G. §§ 4A1.1 and 4A1.2 because the Sentencing Commission has instructed that such prior sentences are not

to influence a defendant's current sentence except to the extent that

an old sentence may be considered as a basis for departure if it "is

evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G.

§ 4A1.2, comment. (n.8); see United States v. Wyne, 41 F.3d 1405,

1408-09 (10th Cir. 1994); United States v. Eve , 984 F.2d 701, 704-05

(6th Cir. 1993).

Here, the district court erred in concluding that all of Puckett's

prior sentences could be considered in determining whether a departure was appropriate. Several of Puckett's prior sentences were

imposed for conduct that arguably was similar to that of the instant

offenses, for example possession of a concealed weapon and unlawful

discharge of a weapon. However, the remainder of the offenses were

neither particularly serious nor similar to the instant offenses. We,

therefore, vacate Puckett's sentence and remand for resentencing. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED

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