UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

v. 

LARRY BRUCE MANGUM, 

Defendant – Appellant. 

No. 13-4167 

(D.C. No. 2:12-CR-00762-TS-1) 

(D. Utah) 

ORDER AND JUDGMENT*

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

 

 Larry Mangum appeals his sentence, arguing that the district court erred by 

departing upward based on prior dissimilar adult conduct. Exercising jurisdiction under 

28 U.S.C. § 1291 and 18 U.S.C. § 3231, we affirm. 

I

 On October 28, 2012, Larry Mangum and his brother, Troy Mangum, got into an 

 

* At the parties’ request, the case is unanimously ordered submitted without oral 

argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This order and 

judgment is not binding precedent, except under the doctrines of law of the case, res 

judicata, and collateral estoppel. The court generally disfavors the citation of orders and 

judgments; nevertheless, an order and judgment may be cited under the terms and 

conditions of 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 18, 2015

Elisabeth A. Shumaker 

Clerk of Court
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argument at the home where Larry lived with their father. A witness reported that Larry 

had been using methamphetamine. The fight became physical, and Larry went into the 

house to retrieve a shotgun. Larry cocked the shotgun, pointed it at Troy, and threatened 

to shoot him if he did not leave. Troy left and his wife called the police. After an eighthour standoff during which police obtained a warrant, Larry surrendered. Police found a 

loaded shotgun in the house. Federal prosecutors charged Larry (hereinafter “Mangum”) 

with two counts of being a felon in possession of a firearm and ammunition. He pled 

guilty to the firearm count and the ammunition count was dropped. State prosecutors 

later dropped separate assault charges. 

 Mangum has an extensive criminal history. He has ten prior convictions, 

including convictions for several violent crimes occurring more than fifteen years before 

his sentencing. Relevant to this appeal, he was convicted of aggravated assault twice: 

once in 1973, and again in 1984 for shooting at a seventeen-year-old boy. He also 

allegedly committed but was not convicted of other crimes, including aggravated assault 

in 1976, 1981, and 1983, and several sex crimes against minors between 2001 and 2009, 

including aggravated sexual assault in 2002.

A presentence report (“PSR”) recommended classifying Mangum’s criminal 

history as category IV based on his convictions during the previous fifteen years. The 

PSR recommended a Guidelines range of 57-71 months. Concerned that criminal history 

category IV failed to reflect the nature, frequency, and seriousness of Mangum’s prior 

criminal conduct, the government moved for an upward departure to criminal history 

category VI. See U.S.S.G. § 4A1.3. The government argued that under § 4A1.2 cmt. 
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n.8, the 1984 aggravated assault conviction constitutes “similar, or serious dissimilar, 

criminal conduct” outside the fifteen-year period used in criminal history calculations, 

justifying an upward departure. It also argued that other alleged crimes, including the 

alleged sexual assaults, constitute similar adult criminal conduct not resulting in a 

conviction under § 4A1.3(a)(2)(E). 

During Mangum’s sentencing hearing, the district court referenced his criminal 

history as including “multiple incidents of criminal conduct not resulting in convictions,” 

including “multiple instances of forcible sexual assault of minors.” The district court 

then described Mangum’s multiple assault convictions as evidence of prior “similar or 

serious dissimilar criminal conduct” outside the fifteen-year period that may nonetheless 

be considered when ruling on a motion for an upward departure. Ultimately, the district 

court concluded that “[b]ased on the defendant’s prior similar conduct not included in the 

criminal history calculation and defendant’s extreme conduct that did not result in 

convictions, the Court is convinced that it all indicates a likelihood that this defendant 

will commit other crimes.” It granted the government’s motion for an upward departure, 

and increased Mangum’s criminal history category from IV to V. This resulted in a 

Guidelines range of 70-87 months. The court sentenced Mangum to 87 months. He 

timely appealed. 

II 

 Mangum argues that the district court committed reversible error by departing 

upward based in part on alleged conduct that was not similar to the crime for which he 

was convicted. We apply a four-factor test to review a district court’s decision to depart 
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upward: “(1) [W]hether the district court relied on permissible departure factors, (2) 

whether those factors removed a defendant from the applicable Guidelines heartland, (3) 

whether the record supports the district court’s factual basis for a departure, and (4) 

whether the degree of departure is reasonable.” United States v. Robertson, 568 F.3d 

1203, 1211 (10th Cir. 2009). Mangum’s appeal is entirely premised on the first prong of 

this test. We review district court decisions under that prong de novo. United States v. 

Munoz-Tello, 531 F.3d 1174, 1188 (10th Cir. 2008). 

Under the Guidelines, district courts may depart upward when “reliable 

information indicates that the defendant’s criminal history category substantially 

underrepresents the seriousness of the defendant’s criminal history or the likelihood that 

the defendant will commit other crimes.” § 4A1.3(a)(1). When “the court finds that a 

sentence imposed outside [the applicable time period] is evidence of similar, or serious 

dissimilar conduct, the court may consider this information in determining whether an 

upward departure is warranted under § 4A1.3.” § 4A1.2 cmt. n.8. 

The district court discussed Mangum’s prior convictions for aggravated assault as 

an example of an imposed sentence that evidences “similar or serious dissimilar” conduct 

and therefore can warrant an upward departure even though it occurred more than fifteen 

years ago. Notably, his 1984 aggravated assault conviction involved pointing a firearm at 

a victim, just as he did in the case at bar. Cf. Robertson, 568 F.3d at 1206-07, 1212-13 

(explaining that a district court did not err in considering a defendant’s “long history of 

carrying weapons [and] using weapons in a violent way” when determining whether to 

depart upward in sentencing a defendant who pled guilty to being a felon in possession of 
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a firearm). Mangum himself admits that his prior assault convictions from outside the 

relevant timeframe constitute an appropriate basis for an upward departure. The prior 

assault convictions from outside the relevant fifteen-year timeframe were thus a valid 

basis for the district court’s decision to depart upward. 

Mangum nevertheless argues that the district court committed reversible error 

when it went beyond discussion of his past aggravated assaults and also referenced his 

“multiple instances of forcible sexual assault on minors.” From the outset, we note that 

“not every consideration of an improper[] departure factor necessitates a remand.” Id. at 

1212. But we need not address the parties’ arguments regarding the harmlessness of any 

error committed, because the district court did not err. Mangum argues that perpetrating 

a sexual assault is not “similar” to being a felon in possession of a firearm, and it is 

therefore not a valid basis for an upward departure under § 4A1.3(a)(2). Under the 

Guidelines, evidence of “[p]rior similar adult criminal conduct not resulting in a criminal 

conviction” may provide information indicating that a defendant’s criminal history is 

underrepresented. § 4A1.3(a)(2). Yet “[n]othing in § 4A1.3(a)(2) suggests that the 

grounds listed for departure are the only permissible bases for departure for an 

inadequately represented criminal history category.” United States v. Pettigrew, 468 F.3d 

626, 641 (10th Cir. 2006) (emphasis added). Section 4A1.3(a)(2) specifies that the 

information indicating that an upward departure is warranted “may include” any of 

several categories of information. Id. (emphasis added). Use of the term “may include” 

indicates that the categories listed are not exclusive. See Smith v. Midland Brake, Inc., 

180 F.3d 1154, 1168 n.7 (10th Cir. 1999) (en banc) (“The words ‘may include’ precede 
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the nonexclusive list . . . precisely because the list is nonexclusive . . . .”). 

Accordingly, in Pettigrew, we held that it was permissible for a district court to 

depart upward for two reasons that were not listed under § 4A1.3(a)(2). 468 F.3d at 641-

42. Thus, the district court could permissibly consider evidence that Mangum sexually 

assaulted minors when it departed upward based on Mangum’s underrepresented criminal 

history.1

 It is not error to rely on types of criminal conduct not listed in § 4A1.3(a)(2) to 

conclude that a defendant’s criminal history is underrepresented. 

Mangum relies on United States v. Allen, 488 F.3d 1244 (10th Cir. 2007), which 

concluded that prior adult criminal conduct must “relate meaningfully to the offense of 

conviction” for a departure under § 5K2.0 to be justified. Allen, 488 F.3d at 1257. But 

Allen explicitly noted that “[s]ection 5K2.0 is not applicable to departures pursuant to 

other guidelines, such as underrepresentation of criminal history,” and that “[n]either 

criminal history nor underrepresentation of criminal history is limited to crimes related to 

the crime of conviction.” Allen, 488 F.3d at 1257 n.4. Accordingly, Allen is inapposite. 

III

 The district court properly based its upward departure on Mangum’s prior 

 1

 We recognize that the outcome of this case might be different if the district court 

had explicitly stated that it was relying only on § 4A1.3(a)(2)(E) as the basis for its 

upward departure, and then proceeded to depart upward based on conduct that falls 

outside of § 4A1.3(a)(2)(E). Cf. Robertson, 568 F.3d at 1213 (“An upward departure 

under § 4A1.3(a)(2)(E) is only befitting if a defendant’s prior, adult, criminal conduct is 

sufficiently similar to that underlying the instant offense.”). But in this case, although the 

district court referenced § 4A1.3(a)(2)(E) earlier in the sentencing proceeding, it did not 

tie its decision to depart upward to § 4A1.3(a)(2)(E), but rather based its decision on 

Mangum’s “extreme conduct that did not result in convictions [which] indicates a 

likelihood that [he] will commit other crimes.”
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aggravated assault convictions pursuant to § 4A1.2 cmt. n.8. His prior alleged sexual 

assaults were also a proper basis for departure because § 4A1.3(a)(2) provides only a 

nonexclusive list of grounds for departure. Accordingly, the judgment of the district 

court is AFFIRMED. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge