* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 6, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30382

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VINSON PULLIUM,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:05-CR-50058-ALL

--------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Vinson Pullium appeals the sentence imposed following his

guilty-plea conviction of possession of ammunition by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). He challenges the

district court’s decision to depart upwards from a guidelines

range of 51 to 63 months of imprisonment and impose a sentence of

96 months of imprisonment. He argues that the district court

erred when it decided to depart upward based on his criminal

history, because his criminal history score fully reflects the

nature and seriousness of his criminal history and the likelihood
No. 06-30382

-2-

that he will commit other crimes. He also argues that the extent

of the departure was unreasonable.

The district court’s oral sentencing pronouncement indicates

that the sentence includes an upward departure, but in the

statement of reasons the district court indicated that it was

imposing a non-Guidelines sentence. See, e.g., United States v.

Smith, 440 F.3d 704, 707 (5th Cir. 2006). When a written

sentence and an oral pronouncement are in conflict, the oral

pronouncement controls. United States v. Torres-Aguilar, 352

F.3d 934, 936 (5th Cir. 2003). Therefore, Pullium’s sentence is

a sentence that includes an upward departure and is not a nonguidelines sentence.

Plain error review governs because Pullium did not preserve

this objection. See United States v. Jones, 444 F.3d 430, 436

(5th Cir.), cert. denied, 126 S. Ct. 2958 (2006). The district

court based its upward departure on U.S.S.G. § 4A1.2, comment.

(n.8) and 4A1.3(a), which authorize departures where reliable

information indicates that the criminal history category does not

accurately reflect the seriousness of the defendant’s past

criminal history or the likelihood that the defendant would

commit other crimes. § 4A1.2, comment. (n.8) and § 4A1.3(a). 

The district court is not required to predict recidivism with

scientific certainty. See United States v. Simkanin, 420 F.3d

397, 418 & n.24 (5th Cir. 2005), cert. denied, 126 S. Ct. 1911

(2006).
No. 06-30382

-3-

The district court’s reasons for the upward departure

advance the objectives set forth in 18 U.S.C. § 3553(a)(2) and

are justified by the facts. See United States v. Zuniga-Peralta,

442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S. Ct. 2954

(2006). Also, Pullium concedes that the district court is not

required to follow his ratio-based approach when determining the

extent of the departure. The district court is not required to

mechanically discuss each sentencing level that it rejects. See

Zuniga-Peralta, 442 F.3d at 348 n.2. Finally, the district

court’s departure does not appear unreasonable. See Simkanin,

420 F.3d at 419; United States v. Daughenbaugh, 49 F.3d 171, 175

(5th Cir. 1995).

Thus, there was no clear or obvious error in the district

court’s decision to depart upward, nor is there clear or obvious

error regarding the extent of the departure. Because any error

was not clear or obvious, Pullium cannot show plain error

regarding the upward departure. United States v. Olano, 507 U.S.

725, 731-37 (1993).

The judgment of the district court is therefore AFFIRMED.