* 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. 07-40295

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MAURICE ANDRE PERRY

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:05-CR-00017-ALL

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Maurice Andre Perry pleaded guilty without a plea agreement to

possession of more than 50 grams of cocaine base with intent to distribute, in

violation of 21 U.S.C. § 841. He appeals his sentence, arguing that the district

court erred in departing upward to a term of 192 months. We affirm.

We review upward departures for reasonableness under an abuse-ofdiscretion standard. UnitedStates v.Saldana, 427F.3d 298, 308 (5th Cir. 2005).

A sentencing court does not abuse its discretion in deciding to make an upward

United States Court of Appeals

Fifth Circuit

F I L E D

March 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-40295

2

departure 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). The Guidelines expressly authorize a district court to depart upward

based on a finding that the 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); Zuniga-Peralta, 442

F.3d at 347.

Perry argues that the district court erred because the court relied upon

improper prior offenses to support its conclusion that his criminal history score

was not appropriately representative of his “true criminality.” Perry argues that

the offenses and charges considered were either too old, were dismissed when he

pleaded guilty to other charges, were dismissed for lack of evidence, were based

on arrests which were never prosecuted, or were non-significant misdemeanor

offenses. 

Perry raised mostly generalized objections to the upward departure before

the district court, and did not specifically argue several of the claims he makes

here. For these claims, we review the district court’s decision for plain error.

United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir. 2005). For the

claims Perry actually preserved with objections, we examine whether error

occurred and, if so, whether that error was harmless. United States v. Mares,

402 F.3d 511, 520 n.9 (5th Cir.2005). For reasons explained below, we need not

specify which standard applies to each of Perry’s individual claims.

The district court explained its decision to make the upward departure by

noting at the sentencing hearing the following considerations, among others:

[Perry’s] likelihood of recidivism is not sufficiently addressed by

placement in a Criminal-History Category [V]. The defendant has

been sent to state prison, the county jail, fined and been on

probation and parole. To date none of these sanctions have had any

meaningful impact on deterring him from a dedicated and very
No. 07-40295

3

motivated criminal lifestyle. And it is, therefore, remarkably

unlikely that he will be deterred in the future without a more

serious punishment . . . . 

The district court then calculated Perry’s sentence based upon a criminal

history category of VI. 

A finding that a criminal history category does not sufficiently account for

the likelihood of recidivism is by itself an appropriate basis for a departure. See

United States v. McDowell, 109 F.3d 214, 219 (5th Cir. 1997); see also

Background Note to U.S.S.G. § 4A1.3 (noting that the Guideline-produced

criminal history score may not accurately reflect risk of recidivism in defendants

who may have received more lenient treatment for past offenses due to youth).

Further, our review ofthe record finds the district court’s decision to be justified.

For example, Perry was given deferred adjudication for a prior conviction for

possession of a controlled substance. Upon violating the conditions of his

supervision, he received a ten-year suspended sentence and was placed in an

alternative incarceration program. He again violated his probation terms and

was sentenced to three years in prison. 

We need not evaluate Perry’s claim that the district court improperly

relied on other conduct described in the presentence report to conclude that

Perry’s score did not represent his “true criminality.” Even if Perry is correct,

his sentence will be upheld because the district court’s recidivism-based

enhancement is proper. See United States v. Jones, 444 F.3d 430, 438 (5th Cir.

2006) (mistaken application of Guidelines does not require remand where it is

not reasonably probable that the defendant would have received a lesser

sentence on remand). 

In sum, the record supports the district court’s decision to depart upward.

Accordingly, the judgment of the district court is AFFIRMED.