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, argui ng 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 an d his brother, Troy Mangum, got into an

* At the parties’ request, the case is una nimously 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 This order and judgment is not binding precedent, except und er the doctrines of law of the case, res judicata, and collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and j udgment 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-2- argument at the home where Larr y 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 th e 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 pros ecutors charged Larry (hereinafter “Mangum”) with two counts of being a fe lon in possession of a firearm and ammunition. He pled guilty to the firearm count an d the ammunition count was dr opped. State prosecutors later dropped separate assault charges. Mangum has an extensive criminal hi story. He has ten prior convictions, including convictions for several violent crim es occurring more than fifteen years before his sentencing. Relevant to this appeal, he was convicted of aggravated assault twice: once in 1973, and agai n in 1984 for shooting at a seve nteen-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 cr imes against minors be tween 2001 and 2009, including aggravated sexual assault in 2002. A presentence report (“PSR”) recommende d classifying Mangum’s criminal history as category IV based on his convictions during the previous fifteen years. The PSR recommended a Guidelines ra nge of 57-71 months. Concer ned that criminal history category IV failed to reflect the nature, fre quency, 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.-3- n.8, the 1984 aggravated assault conviction constitutes “similar, or serious dissimilar, criminal conduct” outside the fifteen-year pe riod used in criminal history calculations, justifying an upward departure. It also ar gued 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 di strict 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 defendan t’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 a ll indicates a likelihood that this defendant will commit other crimes.” It granted the go vernment’s motion for an upward departure, and increased Mangum’s criminal history cate gory from IV to V. This resulted in a Guidelines range of 70-87 months. The co urt 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 th e crime for which he was convicted. We apply a four-factor test to review a district court’s decision to depart-4- upward: “(1) [W]hether the district court re lied on permissible departure factors, (2) whether those factors removed a defendant from the applicable Guidelines heartland, (3) whether the record supports th e district court’s factual ba sis for a departure, and (4) whether the degree of departure is reasonabl e.” 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 11 74, 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 defendan t’s criminal history or the likelihood that the defendant will commit other crimes.” § 4A 1.3(a)(1). When “the court finds that a sentence imposed outside [the applicable time pe riod] is evidence of similar, or serious dissimilar conduct, the court may consider th is information in determining whether an upward departure is warranted unde r § 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 evid ences “similar or serious dissimilar” conduct and therefore can warrant an upward departur e even though it occurred more than fifteen years ago. Notably, his 1984 aggravated assa ult 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 vi olent way” when determining whether to depart upward in sentencing a defendant who pled guilty to being a felon in possession of-5- a firearm). Mangum hi mself admits that his prior assa ult convictions from outside the relevant timeframe constitute an appropr iate 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 dist rict court committed reversible error when it went beyond discussion of his past a ggravated assaults and also referenced his “multiple instances of forcible sexual assault on minors.” Fr om the outset, we note that “not every consideration of an improper[] departure factor necessitates a remand.” Id. at 1212. But we need not addre ss the parties’ arguments rega rding the harmlessness of any error committed, because the district court di d 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 fo r an upward departure unde r § 4A1.3(a)(2). Under the Guidelines, evidence of “[p]rior similar adult criminal co nduct not resulting in a criminal conviction” may provide information indicati ng that a defendant’s criminal history is underrepresented. § 4A1.3(a)(2). Yet “[n]ot hing 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 cate gory.” 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 warra nted “may include” any of several categories of information. Id. (empha sis added). Use of the term “may include” indicates that the categories listed are not excl usive. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1168 n.7 (10th Cir. 1999) (en banc) (“The words ‘may include’ precede-6- the nonexclusive list . . . precisely becau se 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 ev idence that Mangum sexually assaulted minors when it depart ed upward based on Mangum’s underrepresented criminal history. 1 It is not error to rely on types of cr iminal conduct not liste d in § 4A1.3(a)(2) to conclude that a defendant’s crim inal history is underrepresented. Mangum relies on United States v. Alle n, 488 F.3d 1244 (10th Cir. 2007), which concluded that prior adult criminal conduct mu st “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 crimin al 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 ca se 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 pr ior, adult, criminal conduct is sufficiently similar to that unde rlying the instant offense.”). But in this case, although the district court referenced § 4A 1.3(a)(2)(E) earlier in the sent encing 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 re sult in convictions [which] indicates a likelihood that [he] will commit other crimes.”-7- aggravated assault convictions pursuant to § 4A1.2 cmt. n.8. His prior alleged sexual assaults were also a proper basis for depa rture because § 4A1.3( a)(2) provides only a nonexclusive list of grounds for departure. Accordingly, the judgment of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge