*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40274

(Summary Calendar)

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MELVIN GREGORY WHITE, 

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of Texas

(C-94-CR-211-1)

September 14, 1995

Before GARWOOD, WIENER and PARKER, Circuit Judges. 

PER CURIAM:* 

 

Defendant-Appellant Melvin Gregory White appeals from the

sentence imposed by the district court following White's conviction

on a plea of guilty for drug related violations. Specifically,
2

White challenges the decision of the district court to depart

upward on the basis of an understated criminal history. Although

the question is quite close, we find sufficient support in the

Presentence Investigation Report (PSR), the colloquy between the

court and the probation officer who prepared that report, and the

remainder of the transcript of the sentencing hearing, to justify

affirming of the court's upward departure and the sentence imposed

on the basis thereof. 

I

FACTS AND PROCEEDINGS

White pleaded guilty to possession with intent to distribute

429 kilograms of marijuana. He had an adjusted base offense level

of 25, a criminal history category of II, and a sentencing range of

63 to 78 months. The district court found that White's criminal

history category "grossly understated" his criminal history and

departed upward based on his uncounted prior convictions to a

hypothetical sentencing range of 70 to 87 months. The district

court also granted the government's motion for a downward departure

based on White's substantial assistance. The district court

sentenced White to 50 months of imprisonment, however, instead of

32 months as recommended by the government. White timely filed a

notice of appeal.

II

ANALYSIS

White contends that the district court failed to espouse

sufficient acceptable reasons justifying its upward departure. He
3

maintains that the district court's sole express reason for its

upward departure -- that his criminal history was "grossly

understated" -- was not sufficient to support the upward departure.

 

An upward departure will be affirmed if the district court

offers acceptable reasons for the departure and the departure is

reasonable. United States v. Lambert, 984 F.2d 658, 663 (5th Cir.

1993) (en banc). The decision to depart from the Sentencing

Guidelines is reviewed for an abuse of discretion. United States

v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993). The district

court's articulated reasons for upward departures are findings of

fact that we review for clear error. United States v. Pennington,

9 F.3d 1116, 1118 (5th Cir. 1993).

Under § 4A1.3, "[i]f reliable information indicates that the

criminal history category does not adequately reflect the

seriousness of the defendant's past criminal conduct or the

likelihood that the defendant will commit other crimes, the court

may consider imposing a sentence departing from the otherwise

applicable guideline range." See § 4A1.3, p.s. If the district

court departs upward, it must state the specific reason for doing

so. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en

banc), cert. denied, 115 S. Ct 1969 (1995). The inadequacy of a

defendant's criminal history category is an acceptable basis for

departure. United States v. Laury, 985 F.2d 1293, 1310 (5th Cir.

1993)(defendant's 20 criminal history points well above the 13

required to place him in criminal history category VI). Sentencing
4

courts have wide discretion in determining the extent of the

departure. United States v. Moore, 997 F.2d 30, 37 (5th Cir.),

cert. denied, 114 S. Ct. 647 (1993).

We have affirmed upward departures based on a defendant's

inadequate criminal history category. See Ashburn, 38 F.3d at 809

(district court provided adequate reasons for departure); United

States v. Ford, 996 F.2d 83, 87-88 (5th Cir. 1993) (departure

upheld on basis of uncounted prior convictions), cert. denied, 114

S. Ct. 704 (1994); United States v. Carpenter, 963 F.2d 736, 743-45

(5th Cir.)(same), cert. denied, 113 S. Ct. 355 (1992). See also

Pennington, 9 F.3d at 1118-19 (district court's reasons warranted

departure, but remanded because district court did not follow

proper methodology).

On the other hand, we have vacated sentences when the district

court failed expressly to articulate the reasons for its upward

departure. See, e.g., United States v. Martinez-Perez, 916 F.2d

1020, 1024-25 (5th Cir. 1990); United States v. Jones, 905 F.2d

867, 870 (5th Cir. 1990); United States v. Lopez, 871 F.2d 513, 515

(5th Cir. 1989). In Martinez-Perez, the district court stated only

that the Guidelines did not take into consideration the defendant's

criminal involvement; the court did not provide any further

explanation why the defendant's Criminal History Category under the

Guidelines was inadequate. 916 F.2d at 1024-25. In Jones, the

district court bypassed a criminal history category without

explanation and without stating why that category was inadequate.

905 F.2d at 870. We stated in Jones that the district court must
5

identify specific aspects of the defendant's criminal history that

are not adequately considered by the Guidelines, noting

nevertheless that the exclusion of prior convictions that are over

ten years old might constitute a valid explanation for an upward

departure. Id. at 870 n. 4. In Lopez, we held that the district

court erred in departing upward to Category V from Category I

without considering the intermediate categories and explaining why

the intermediate categories were inadequate. 871 F.2d at 515. 

The PSR notes that White's criminal history may not be

adequately reflected by his criminal history category as calculated

under the Guidelines. The PSR provides in pertinent part:

It is noted that the defendant has a

history of criminal involvement which began at

age 23. There are three assault charges and a

charge of non-support which were not given

criminal history points due to the age of the

convictions. Had each of these convictions

been given criminal history points, the

defendant's criminal history score would have

been 6, which would have resulted in a

criminal history category of III and a

guideline range of 70 to 87 months.

At the sentencing hearing, the district court asked the

probation officer to explain how the court could depart upward

based on an inadequate criminal history under the Guidelines. The

following discussion occurred:

THE COURT: Ms. Johnson, explain to me your

understanding of how I can depart upward with

a grossly understated criminal history?

MS. JOHNSON: Based on Section 4A1.3 of the

guidelines, Your Honor, because his criminal

history is understated, the Court can take

into account offenses which were not scored.

Had those offenses been scored, he would have

been at a range of 76 [sic].
6

THE COURT: Six?

. . . . 

MS. JOHNSON: It would have been total score,

total history category of 6, excuse me,

category 3, with a range of 70 to 87 months.

THE COURT: I find, Mr. White, that your

criminal history category is grossly

understated and that had those prior

convictions been counted, you would have been

at a criminal history category 3.

The district court went on to state that the applicable range of

imprisonment was 70 to 87 months. This range was based on the

upward departure. In so doing, the district court adopted for its

departure the reason articulated in the PSR by the probation

officer -- that White had prior convictions which were not counted

in calculating his criminal history category under the Guidelines.

The district court then granted the government's motion for a

downward departure based on White's substantial assistance, but

sentenced White to 50 months of imprisonment instead of 32 months

as recommended by the government. The court's upward and downward

departures thus resulted in a net decrease from the original

sentencing range of 63 to 78 months.

Whether the district court provided sufficient reasons for its

upward departure presents a close question. As noted, the court

based its departure on the reasons articulated by the probation

officer at the sentencing hearing -- that White had prior

convictions which were not counted in calculating his criminal

history category under the Guidelines. The PSR states that White

has two prior convictions for assault and one prior conviction for
7

failure to pay child support, none of which were counted in

determining his criminal history category. The district court did

not discuss in detail, however, the facts underlying the prior

convictions on which it based its upward departure; it merely

expressed the conclusion that White's criminal history category was

"grossly understated." 

White does not challenge the factual basis of these prior

convictions. A review of the transcript of the sentencing hearing

demonstrates that the district court based its upward departure on

White's prior convictions which were not counted in calculating his

criminal history category under the Guidelines. Again, we noted in

Jones that uncounted prior convictions could be a valid reason for

making an upward departure. Jones, 905 F.2d at 870 n.4. We

therefore affirm the district court's upward departure because the

sentencing transcript provided an acceptable reason for the

district court's action. 

AFFIRMED.