* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 revie

w upward departures for reasonableness under an abuse-ofdiscretion standard. U nited Statesv. Saldana, 427 F.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 ClerkNo. 07-40295

2 departurewhen its reasons for doing so (1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2); and (2) arejustified 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 underrepresentstheseriousnessofthe defendant’scriminal 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 representativeofhis “truecriminality.” Perry argues that the offensesand chargesconsidered were either tooold, were dismissed when he pleaded guilty to other charges, were dismissed for lack ofevidence, were based
on arrests which were never prosecuted, or were non-significant misdemeanor offenses. Perry raised mostly generalized objectionstothe 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. U nited 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 suf f iciently 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 veryNo. 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 ofrecidivism is by itselfan appropriate basis for a departure. See U nited States v. McDowell , 109 F.3d 214, 219 (5th Cir. 1997); s ee also Background Note to U.S.S.G. § 4A1.3 (noting that the Guideline-produced criminal history score may not accurately reflect risk ofrecidivism in defendants who may have received more lenient treatment for past offenses due to youth). Further, our reviewofthe record finds the district court’sdecision to bejustified. 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 e

valuate 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 bec ause 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 todepart upward. Accordingly, the judgment of the district court is AFFIRMED.