UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4286

ROCKY LEE STALEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., Chief District Judge.

(CR-98-301)

Submitted: November 9, 1999

Decided: November 22, 1999

Before MURNAGHAN, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant

Federal Public Defender, Greensboro, North Carolina, for Appellant.

Walter C. Holton, Jr., United States Attorney, Robert A.J. Lang,

Assistant United States Attorney, Laura Gendy, Third Year Law Student, Greensboro, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Rocky Lee Staley was convicted pursuant to his guilty pleas of

making a false statement to a firearms dealer in order to obtain a firearm (18 U.S.C. § 922(a)(6) (1994)) and possession of a firearm by a

convicted felon (18 U.S.C. § 922(g)(1) (1994)). Staley alleges on

appeal that the district court's upward departure under USSG

§ 4A1.3, p.s.,1 was unreasonable. Finding no reversible error, we

affirm.

Staley, who was twenty-three years old at the time of the current

offenses, had over forty adult convictions, dating back to when he

was sixteen. The probation officer assigned twenty-five criminal history points and placed Staley in the highest criminal history category,

Category VI.2 The district court agreed with the government at sentencing that Staley's significant criminal history warranted an upward

departure pursuant to USSG § 4A1.3, p.s. Noting that Staley had

twelve points more than the minimum required for Category VI, the

district court moved vertically down the sentencing table one level for

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1 U.S. Sentencing Guidelines Manual (1998). This section allows the

sentencing court to depart upward from the normal sentencing range

when the defendant's criminal history category does not adequately

reflect the seriousness of his past criminal behavior or the likelihood that

he will commit other crimes.

2 Staley challenged four of these points at sentencing, and he claims on

appeal that the court agreed that his objections were technically correct.

We find that Staley misunderstands the record. Our review shows that

the district court decided not to address the merits of Staley's challenge

because there were numerous other convictions which were not counted

toward his criminal history score due to limitations imposed by the

Guidelines but which could be considered when determining the extent

of an upward departure. The court ultimately adopted the probation officer's assessment of twenty-five points.

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every three criminal history points above thirteen, for a total of four

levels.

On appeal, Staley concedes that the district court had the authority

to depart in his case. He also admits that the district court used an

approved formula (i.e., one level for every three criminal history

points). Staley nevertheless argues that the departure in his case was

unreasonable because (1) his record does not contain the type of egregious conduct contemplated by the Sentencing Commission; (2) the

court considered the four points he challenged; (3) it was greater than

what we have approved in prior cases; and (4) the district court failed

to explain why bypassed levels were inadequate.

We review the district court's decision to depart upward for an

abuse of discretion and find none. See United States v. Hairston, 96

F.3d 102, 105 (4th Cir. 1996). An important part of our review is a

determination that the extent of the departure was reasonable. See

United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992).

Contrary to Staley's assertions, his conduct was exactly the type

envisioned by the Commission, and we find that the district court

properly considered the factors outlined in USSG§ 4A1.3, p.s. In

addition to the sheer number of prior convictions, the court noted that

there were multiple convictions for assault, burglary, carrying a concealed weapon, and reckless driving. Moreover, the court correctly

concluded that the large number of convictions occurring in a relatively short period of time suggested a propensity to commit future

crimes. In short, we concur with the district court's finding that Staley

engaged in a repeated pattern of serious misconduct.

We further find that the district court properly considered intervening levels in arriving at its final sentence. The court explained the formula it was going to use and identified the sentencing range at each

bypassed level. In addition, the court discussed the sentence at length

with counsel and allowed Staley to speak in his own behalf. The court

ultimately found that only a four-level increase would adequately

account for the twelve "extra" criminal history points.

Staley's remaining claims are equally without merit. As discussed

earlier, the record does not support his claim that the district court

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agreed with his challenge concerning four of his criminal history

points. Finally, we usually do not compare sentences in unrelated

cases, and we find nothing here to warrant an exception from this

general rule.

We therefore affirm Staley's sentence. 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.

AFFIRMED

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