The H onorable Nanette K. Laughrey, United States District Judge for th e 1 Western District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2181

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. John Edward Williams, * * [UNPUBLISHED] Appellant. *

___________ Submitted: August 21, 1998 Filed: September 3, 1998

___________ Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.

___________ PER CURIAM. John Edward Williams ple aded guilty to possessing a computer disk containing chil dpornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). From a Guideline s imprisonment range of 27 to 30 months, the dist rict court departed upward under U.S.

1 Sente ncing Guidelines Manual § 4A1.3, p.s. (1997) to impose a 60-month sentence
. The court indicated at s entencing that Williams & s Category III criminal history did not adequately refle ct his background (specifically, his juvenile conviction for the murder-2-

of a six-year-old child), that Williams likely would have engaged in more crimina l acti vity had he not been incarcerated for so much of his life, and that he presented “a continuing threat to the community based upon his extensive past historyof sadistic and vio lent sexual behavior.” Williams appeals, arguing that the departure was no t warranted and that the extent of departure was excessive. We affirm. "We review departure decisions under a # unitary abuse-of-discretion standard. & ” Unit ed States v. Washington , 109 F.3d 459, 462 (8th Cir. 1997) (quoting Koon v
. United States , 518 U.S. 81, 100 (1996)). Under section 4A1.3, departure is warranted where a defendant & s “criminal history category significantly under-represents th e seriousness of the defendant & s crimin al history or the likelihood that the defendant will commit further crimes.” Williams & s argument that the district court considered unau thorized factors is not su pportedby the record. We conclude the court properly considered Williams & s unscored murder conviction and mental health professionals & assessment of his capacity fo r future violence--as recited in the presentence report (PSR) without objection--a s valid bases for departure under sect ion 4A1.3. See United States v. Flores , 9 F.3d 54, 56 (8th Cir. 1993) (in absence of objection, court may rely on PSR & s factua l allegations); United States v. Griess , 971 F.2d 13 68, 1374 (8th Cir. 1992) (per curiam) (juvenile offenses excluded from defendant & s criminal history score because of age of conviction m ay be used as basis for departure); cf. Washington , 109 F.3d at 46 2 (affirming upward departure from Category IV where defendant had resumed criminal acti vitypromptly upon each release from prison; noting that it seemed onl y incarceration had kept criminal history low); United States v. Cook , 972 F.2d 218, 222 (8thCir. 1992) (in making § 4A1.3 departure, court properly considered defendant & s continuing pattern of assault and capacity for future violence), cert. denied , 506 U.S. 1058 (1993).-3-

We al so conclude that the district court permissibly increased Williams & s crim inal history category from III to VI and his base offense level from 16 to 17, and that the court adequate ly explained and supported the departure. See USSG § 4A1.3, p.s . (if criminal history category under-represents history, court should look to nex t category to guide its departure; if history warrants upward depa rture from Category VI, cou rt should move down offense levels on sentencing table until it finds rang e appropriate to case); United States v. Collins , 104 F.3d 143, 145 (8th Cir. 1997). Accordingly, we affirm the judgment of the district court. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.