* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30175

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

HOSEA KINCHEN

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:06-CR-148-1

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Hosea Kinchen pleaded guilty to two counts of possession with intent to

distribute cocaine base, one count of possession of a firearm in furtherance of a

drug trafficking crime, and one count of possession of a firearm by a convicted

felon. The district court imposed an upward departure pursuant to U.S.S.G.

§ 4A1.3 and sentenced Kinchen to serve a total of 131 months of imprisonment:

three concurrent terms of 71 months of imprisonment on his convictions for

possession with intent to distribute cocaine base and firearm possession by a

United States Court of Appeals

Fifth Circuit

F I L E D

October 16, 2008

Charles R. Fulbruge III

Clerk
No. 08-30175

2

felon and a consecutive sentence of 60 months of imprisonment on his conviction

for firearm possession in furtherance of a drug trafficking crime. The district

court also sentenced Kinchen to serve a total of five years of supervised release.

Kinchen argues for the first time on appeal that the district court erred in

sentencing him because it did not sufficiently articulate reasons for departing

upwards. An appellate court’s review of a sentence must start with the issue

whether the district court committed any “significant procedural error.” Gall v.

United States, 128 S. Ct. 586, 597 (2007). If the sentencing decision is

procedurally sound, the appellate court then considers “the substantive

reasonableness ofthe sentence imposed under an abuse-of-discretion standard.”

Id. In this case, however, plain error review applies to Kinchen’s arguments

because he did not object in the district court to the upward departure or the

reasonableness of his sentence. See United States v. Peltier, 505 F.3d 389,

390-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).

Kinchen argues that the district court’s reasons were insufficient because

the district court merely recited his criminal history and stated that the

Guidelines did not adequately reflect his likelihood of recidivism. According to

Kinchen, such reasons amount merely to personal disagreement with how the

Guidelines account for a defendant’s likelihood of recidivism relative to his

criminal history. He argues that a district court is required to identify the

specific portions of the defendant’s criminal history that are not adequately

accounted for by the Guidelines and the reasons why those aggravating factors

warrant a departure under § 4A1.3.

The district court stated that Kinchen had not learned to refrain from

criminal activity, that a lesser sentence would have seriously understated the

likelihood that Kinchen would again engage in criminal conduct, and that

Kinchen had 23 criminal history points while his criminal history category of VI

required only a minimum of 13 points. The district court illustrated its

reasoning by recounting a portion of Kinchen’s criminal history that contained
No. 08-30175

3

a series of parole violations. The district court adequately articulated its reasons

for imposing an upward departure. See United States v. Zuniga-Peralta, 442

F.3d 345, 347-48 (5th Cir. 2006).

Kinchen also asserts that the district court incorrectly stated that he had

a history of “gun offenses.” The district court’s statement that Kinchen had

committed “repeated weapons offenses” does not amount to reversible plain

error, particularly in light ofthe district court’s extensive articulation of reasons

regarding Kinchen’s failure to refrain from engaging in criminal activity.

AFFIRMED.