UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4519

MARK RICHMOND MCCOY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CR-97-30)

Submitted: April 30, 1998

Decided: February 10, 1999

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Janice McKenzie Cole, United States Attorney, Anne M.

Hayes, Assistant United States Attorney, Thomas B. Murphy, Assistant United States Attorney, Bryan J. Ng, Third Year Law Student,

Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mark Richmond McCoy appeals the sixty-month sentence he

received after pleading guilty to making false statements to a financial

institution. See 18 U.S.C.A. § 1014 (West Supp. 1998). He contends

that the district court abused its discretion by departing upward above

criminal history category VI under U.S. Sentencing Guidelines

Manual ("USSG or Guidelines"), § 4A1.3, p.s. (Nov. 1995), and failing adequately to explain the extent of the departure. We affirm.

McCoy's 14 criminal history points placed him in category VI.

With an offense level of 10, his guideline range was 24 to 30 months.

At his sentencing hearing, the district court upwardly departed under

USSG § 4A1.3 because it found that McCoy's criminal history did

not adequately reflect the seriousness of his past criminal conduct or

the likelihood that he would commit other crimes. Referring to

McCoy's presentence report ("PSR"), the court noted that he had

sixty-eight separate convictions for worthless checks, which only

yielded three criminal history points as calculated in the PSR. The

court then "hypothetically assign[ed] one criminal history point to

each [worthless check] conviction"1 for which McCoy had previously

received a six-month sentence, increasing McCoy's criminal history

points by 32 and resulting in 46 points. Beginning with McCoy's

PSR-calculated offense level of 10 and criminal history category VI,

the court moved down one offense level for each three criminal history points until a total of 46 criminal history points had been considered for departure. This methodology yielded an offense level of 21

with a criminal history category of VI. Because, however, the court

considered "each intervening offense level" it found that "a criminal

history category of VI with a corresponding offense level of 17 would

adequately account for McCoy's past criminal record, and his propen-

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1 Joint appendix ("J.A.") at 19-20.

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sity for future criminality."2 The court sentenced McCoy within that

Guidelines range to 60 months incarceration. We have approved of

departing above category VI by moving to successively higher

offense levels. See United States v. Cash, 983 F.2d 558, 561 & n.6

(4th Cir. 1992).

We review McCoy's claim that the departure was unjustified for an

abuse of discretion. See Koon v. United States , 518 U.S. 81, ___, 116

S. Ct. 2035, 2043 (1996). Under USSG § 4A1.3, departure is encouraged if the defendant's criminal history and likelihood that he will

commit other crimes is over- or underrepresented. The district court

found that category VI was not adequate because of the frequency and

seriousness of McCoy's prior criminal conduct. We agree. McCoy,

although only age twenty-eight at the time of his sentencing, had a ten

year record of criminal conduct comprised primarily of fraud convictions with much of his criminal conduct effected while he was on

supervised release, probation, or parole. His criminal history also

revealed numerous instances of failure to appear in court. See United

States v. Wilson, 913 F.2d 136, 138-39 (4th Cir. 1990) (upholding

upward departure based upon defendant's fifty-five worthless checks

convictions).

McCoy also contends that the district court failed to consider each

successively higher offense level and make specific findings before

proceeding to the next higher one. See Cash, 983 F.2d at 561-63;

United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). While the

court did not make a specific finding concerning each higher offense

level, its comments indicate that its intention was to comply with the

dictates of Cash and Rusher, and that it considered the intervening

offense levels inadequate to account for McCoy's past criminal conduct and likelihood of future criminal conduct. We find that remand

for a more explicit statement from the court is unnecessary.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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2 (J.A. at 20).

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