* 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that this opinion should not be published and is not precedent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. 01-50516

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

WILLIE HOLLOWAY

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-99-CR-424-ALL

--------------------

March 28, 2002

Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.

PER CURIAM:*

Willie Holloway appeals his conviction and sentence for

possession of cocaine base with the intent to distribute. He

first argues that the statutes under which he was convicted and

sentenced, 21 U.S.C. §§ 841(a)(1) and (b)(1), were

unconstitutional following Apprendi v. New Jersey, 530 U.S. 466

(2000). As Holloway concedes, however, this argument is barred

by United States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir.

2000), cert. denied, 532 U.S. 1045 (2001).
No. 01-50516

-2-

Holloway next contends that the district court erred in

departing upwardly from the applicable guidelines range. He

argues that the district court gave insufficient reasons for

departing, that it did not adequately explain why intervening

levels were inappropriate, and that the departure was excessive. 

Each of these arguments is unavailing.

The district court explained that its departure was based on

the fact that Holloway’s criminal history score significantly

underrepresented his criminal past. It relied on the

extensiveness of Holloway’s criminal past; the similarity of his

past drug offenses, including those which did not result in

criminal convictions; and the fact that, at the time of his

arrest, Holloway awaited sentencing in another state-court

conviction for cocaine possession. Id. Each of these factors is

a proper ground for departure. See U.S.S.G. § 4A1.3 (p.s.) 

& comment. (backg’d). 

Holloway’s contention that the district court relied on

improper speculation regarding prior uncharged criminal conduct

is without merit. Although it is true that a court may not rely

on a defendant’s “prior arrest record itself” (§ 4A1.3), as

explained above, the district court did not rely solely on

Holloway’s prior arrest record. Moreover, the court complied

with the guideline’s directive that it consider “prior similar

adult criminal conduct not resulting in a criminal conviction.” 

§ 4A1.3(e). 

Holloway’s argument that the district court did not

adequately explain its reasons for rejecting intermediate levels
No. 01-50516

-3-

before reaching its determination that level 33 was appropriate

is similarly unavailing. The district court followed the correct

procedure for departing upwardly from a criminal history score of

VI. See United States v. Lambert, 984 F.2d 658, 662-63 (5th Cir.

1993)(en banc); § 4A1.3. It stated for the record that it had

considered the intermediate levels before determining that level

33 was appropriate. See Lambert, 984 F.2d at 662. The court was

not required to engage in a mechanical, ritualistic approach of

specifying its reasons for rejecting each intermediate level. 

Id. at 663. The district court’s reasons for rejecting the

intermediate levels are, if not explicit, implicit in its reasons

for upwardly departing; it did not believe that the intervening

levels were sufficient to address the combination of the

extensiveness and consistency of Holloway’s criminal past with

respect to his propensity for committing drug-related crimes. 

This explanation, read in context of the appellate record, was

sufficient. See id.; see also United States v. Ashburn, 38 F.3d

803, 809 (5th Cir. 1994) (en banc). The district court’s

departure was not so drastic as to fall within the very narrow

class of cases when a more detailed explanation is required. See

id.

To the extent that Holloway argues that the district court’s

departure was unreasonably extensive, his argument likewise

fails. The departure was not greater than other departures

approved by this court. See Ashburn, 38 F.3d at 809 (affirming

departure which doubled the recommended guidelines range);

Lambert, 984 F.2d at 664 (same).
No. 01-50516

-4-

The district court’s reasons for the upward departure were

sufficient, and its departure was not an abuse of discretion. 

Holloway has not demonstrated any error in the district court’s

judgment, and the judgment is therefore AFFIRMED.