*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40265

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EARL RAY ANDREWS, also known as

E. Ray Andrews,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(6:94-CR-39-1)

_________________________________________________________________

February 19, 1996

Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM:*

Earl Ray Andrews was convicted on a guilty plea of

interference with commerce by use of a position under color of

official right in violation of the Hobbs Act, 18 U.S.C. § 1951.

Andrews appeals his sentence, contending that the district court

erred in departing upward from the applicable guideline range under

U.S.S.G. § 5K2.7 and § 4A1.3. We agree in part and hold that the
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district court erred in departing from the guidelines under §

5K2.7. 

I

Andrews served as Henderson County, Texas District Attorney

("D.A.") from June 1, 1992 to August 15, 1994. As D.A., he had the

sole authority to prosecute or dismiss criminal matters. Andrews's

office secured a grand jury indictment against Jerry Mack Watkins

in December 1993 for the murder of his wife. The trial was

scheduled to begin on August 15, 1994. In July 1994, Andrews

discussed the case against Watkins with Loran Wade Waggoner, who

suggested that Watkins would probably pay Andrews to dismiss the

case. Waggoner asked Andrews if he could use the money and

Andrews, considering his bleak financial situation, indicated that

he could. Andrews "agreed that it would be okay for [Waggoner] to

pursue this matter and attempt to ascertain if Watkins would make

a payment." On August 3, 1994, Waggoner told Andrews that he had

negotiated a $300,000 payment and that he had received $100,000 of

the funds. Andrews, who was deep into other trouble concerning his

official duties, then advised Waggoner that he could no longer do

anything about Watkins's case because the First Assistant District

Attorney had taken charge of the D.A.'s office. 

II

On September 29, 1994, Andrews pleaded guilty to a violation

of the Hobbs Act, 18 U.S.C. § 1951, based on the conduct described

above. The presentence investigation report ("PSR") recommended a
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total offense level of 17 and a criminal history category of I,

with a guideline range of 24 to 30 months. Andrews filed

objections to the PSR. The district court notified Andrews that it

was considering departing upwardly under U.S.S.G. § 5K2.7 for

significant disruption of a governmental function and under § 4A1.3

because Andrews's criminal history category did not adequately

reflect the seriousness of his past criminal conduct and/or the

likelihood of future crimes. At sentencing, the district court

overruled Andrews's objections to the PSR, adopted the PSR, and

considered Andrews's objections to the proposed upward departures.

After determining that the applicable guideline range did not

adequately reflect Andrews's criminal history and potential for

recidivism, the district court increased his criminal history score

by seven points to category IV, resulting in a guideline range of

37 to 46 months. Based on both § 4A1.3 and § 5K2.7, the court

concluded that an upward departure to 60 months was warranted. It

limited its departure to 42 months because "some portion of the

information [the court] relied on was voluntarily disclosed to the

government by Andrews, and it is unlikely that the government would

have discovered all of the information without Andrews's

cooperation."

III

The district court may depart from the applicable sentencing

range if "the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately
 

1Andrews's challenge to the departure under § 4A1.3 is without

merit. Andrews argues that the district court improperly

considered conduct that the guidelines specifically exclude from

consideration as part of a defendant's criminal history. Under §

4A1.3, an upward departure "is warranted when the criminal history

category significantly under-represents the seriousness of the

defendant's criminal history or the likelihood that the defendant

will commit further crimes." U.S.S.G. § 4A1.3, p.s. Having

reviewed the transcript and the district court's opinion, we cannot

say that the district court abused its discretion given the reasons

it cited to justify the departure.

 

2Section 5K2.7, entitled "Disruption of Governmental

Function," provides: 

If the defendant's conduct resulted in a significant

disruption of a governmental function, the court may

increase the sentence above the authorized guideline

range to reflect the nature and extent of the disruption

and the importance of the governmental function affected.

Departure from the guidelines ordinarily would not be

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taken into consideration by the Sentencing Commission in

formulating the guidelines." 18 U.S.C. § 3553(b) (1994). We will

affirm a departure if the district court offers acceptable reasons

for the departure and if the departure is reasonable. United

States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc).

The decision to depart is reviewed for abuse of discretion. United

States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993).

Although Andrews challenges the district court's departure

under both § 5K2.7 and § 4A1.3, we write solely to address the

former.1 Andrews argues that the district court abused its

discretion by departing upwardly under § 5K2.7 because there were

unusual circumstances as the guidelines require when some degree of

disruption of a governmental function is inherent in the nature of

the offense to which he pleaded guilty.2
justified when the offense of conviction is an offense such as

bribery or obstruction of justice; in such cases interference with

a governmental function is inherent in the offense, and unless the

circumstances are unusual the guidelines will reflect the

appropriate punishment for such interference.

U.S.S.G. § 5K2.7, p.s. (emphasis added).

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 The district court recognized that disruption of a

governmental function is inherent in a Hobbs Act offense, but found

that unusual circumstances warranted a departure upward. The court

found that "the State of Texas removed Andrews from office prior to

the end of his term, and made other provision for the function of

that office until a new district attorney was selected. In

addition, future prosecution of a murder charge was potentially

jeopardized by Andrews's conduct."

Because the offense of bribery of a public official inherently

disrupts a governmental function, the disruption "would have to be

quite serious to warrant a departure from the guidelines."

U.S.S.G. § 5K2.0, p.s. In United States v. Garcia, 900 F.2d 45, 49

(5th Cir. 1990), we recognized that disruption of a government

function was inherent in a mail-theft conviction, but we upheld an

upward departure under § 5K2.7 because of the large amount of mail

involved and the fact that some of the mail was discarded and never

reached its intended destination. The defendant's conduct was so

extensive that it caused more disruption than that inherent in the

offense. See 900 F.2d at 48-49.

In United States v. Murillo, 902 F.2d 1169 (5th Cir. 1990),

the defendant was "in the business" of selling false documents to
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"countless" illegal aliens and providing for their transportation.

We upheld a § 5K2.7 upward departure based on the district court's

finding that "the integrity of the amnesty system in the Eastern

District of Louisiana [was] severely compromised because of the

illegal acts of [the defendant]." Id. at 1174.

The guidelines and these decisions suggest that in reviewing

an upward departure under § 5K2.7 for crimes in which governmental

disruptions are inherent, we do not look simply at the governmental

disruptions and ask whether they are "unusual" or "quite serious"

within themselves. Instead we ask whether the disruptions are

"unusual" or "quite serious" in the light of the particular crimes.

Thus, we first focus on the general nature of the particular

charged offense--a district attorney accepting a bribe--and the

governmental disruption normally associated with such offense. We

then evaluate the conduct and circumstances of the actual offense

to determine whether the disruption significantly exceeded the

disruption normally associated with such an offense so as to

justify a sentence above the sentence provided by the guidelines.

The disruption cited by the district court simply is not unusual

when viewed in the context of a case involving bribery of a

district attorney. It is certainly not unusual for such conduct to

jeopardize the prosecution of the case for which the bribe is

offered. Nor is it unusual for such conduct to result in the

prosecutor leaving office. Furthermore, the disruption was not

made unusual by the extensiveness of the corruption; the disruption
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resulted from only one instance of bribery involving only one case.

In contrast, the defendant's criminal acts in Garcia affected

truckloads of mail, 900 F.2d at 46, and the defendant in Murillo

sold false documentation to "countless" illegal aliens. 902 F.2d

at 1170. We surely do not wish to minimize the disruptions that

were occasioned by Andrews's criminal acts. We hold only that the

disruptions here--a jeopardized prosecution and a prosecutor's

resignation--are not unusual governmental disruptions when a

prosecutor is caught accepting a bribe. We thus hold that the

reasons stated by the district court are insufficient to justify

departure under § 5K2.7 for disruption caused by Andrews's offense

and, consequently, the district court abused its discretion in

enhancing Andrews's sentence on this basis.

IV

For the foregoing reasons, we VACATE the sentence and REMAND

to the district court for resentencing. See Williams v. United

States, 112 S.Ct. 1112, 1120 (1992) (holding that when a district

court has intended to depart from the guideline range remand is

required if the sentence would have been different but for the

district court's misapplication of the guidelines).

VACATED and REMANDED.