*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should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20202

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHNATH JOSEPH,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-94-678)

November 17, 1995

Before THORNBERRY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant, Johnath Joseph, appeals his resentencing by the district court. 18

U.S.C. § 3582(c)(2). We affirm.

Background

Joseph was convicted by a jury of possession of a firearm by a felon and on August

24, 1990, was sentenced by the court to thirty years confinement, five years supervised
 

1 Joseph has not raised on appeal his ineffective assistance

of counsel claims.

2

release, and a $50.00 mandatory special assessment. The conviction and sentence were

affirmed. United States v. Joseph, 940 F.2d 655 (5th Cir. 1991). Joseph filed a motion

alleging his sentence should be corrected due to retroactive application of an amendment

to the career offender guidelines, and urging ineffective assistance of counsel for failing

to advise him of the applicable law and failing to object at sentencing to his enhancement

as a career offender. Following an evidentiary hearing, the district court followed the

magistrate judge's recommendation and denied relief on one complaint of ineffective

assistance, and granted the government's motion for summary judgment on the other.1

After receiving a supplemental presentence investigation report ("PSR") the district court

granted relief on the guideline amendment and resentenced Joseph to 327 months

imprisonment, with the balance of the sentence remaining the same.

Discussion

Joseph first complains that he was not given adequate notice on resentencing of

the district court's intent to upwardly depart from the applicable guideline range. The

record reflects the district court decided a departure was warranted because the criminal

history category did not adequately reflect his violent past, and the likelihood was great

that he would commit future violent crimes. The only objection raised to the upward

departure was a "violation of the ex post facto clause since the Court did not consider

these matters when it first sentenced him. It should now be limited by an earlier

determination." This objection mentioned nothing about notice. Therefore, since this

complaint was not raised in the district court, in order to prevail Joseph must show this

court's failure to consider it would result in manifest injustice. Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991).
3

The district court may upwardly depart on a ground not identified as a reason for

departure either in the PSR or otherwise if the parties are given reasonable notice as

required by Fed. R. Crim. P. 32. United States v. Bachynsky, 949 F.2d 722, 733 (5th Cir.

1991) (appeal following remand from en banc court). Here, in response to the

government's written objections, the probation officer in an addendumto the Supplemental

PSR, deferred to the district court on the matter of an upward departure. Although the

specific grounds for upwardly departing were not given in the PSR addendum, this notation

should have provided adequate notice that the district court could consider such a

departure. Joseph has not shown how failure to consider this issue would result in

manifest injustice.

Joseph next complains that the district court erred because it failed to give

acceptable reasons justifying its upward departure. Joseph argues that the reason given,

namely that his criminal history was understated, was insufficient to justify the departure.

The district court must offer acceptable reasons for the departure. United States

v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc). The record reveals that, after

remarking on Joseph's extensive prior criminal record, the district court articulated the

following reasons for its upward departure:

I conclude that given the seriousness of the Defendant's prior conduct

that was not included in his Criminal History Category, and his long and

violent criminal history, that there is a likelihood that he will commit future

crimes and that a Criminal History Category of V inadequately accounts for

both his past criminal history and the likelihood that he will commit future

crimes, and I will depart upward[.]

Inadequacy of a defendant's criminal history category and the likelihood that he

would commit other crimes are acceptable reasons for an upward departure. See U.S.S.G.

§ 4A1.3. p.s.; United States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993). The district

court did not err in upwardly departing from the guideline range. Lambert, 984 F.2d at 663.

Finally, Joseph argues that the district committed "double counting" by increasing

his base offense level by two levels for possessing a firearm in connection with a drug
4

offense when the offense for which he was convicted already included such consideration.

This complaint is foreclosed by United States v.Segler, 37 F.3d 1131, 1135 (5th Cir. 1994)

(no double jeopardy violation resulted when defendant assessed two-level increase under

U.S.S.G. § 2D1.1(b)(1) for possessing firearmwhile manufacturing methamphetamine and

sentenced for being felon in possession of firearm). Joseph does not dispute that the

firearm he possessed was connected to the offense committed. The district court did not

err by increasing his offense level after finding that he possessed the firearm during the

commission of a drug offense.

AFFIRMED.