UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4109

JERRY DEAN HESS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

James P. Jones, District Judge.

(CR-97-28)

Submitted: December 22, 1998

Decided: January 21, 1999

Before NIEMEYER and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Nancy Combs Dickenson, Lebanon, Virginia, for Appellant. Robert

P. Crouch, Jr., United States Attorney, S. Randall Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Jerry Dean Hess pled guilty to breaking open post office letter

boxes, see 18 U.S.C. § 1705 (1994) (Count Two), and to conspiracy

to commit offenses against the United States, see 18 U.S.C. § 371

(1994) (Count Four). The district court imposed a sentence of ninetysix months by sentencing Hess to the statutory maximum of three

years on Count Two and to a consecutive five-year sentence (also the

statutory maximum) on Count Four. Hess contends that the district

court abused its discretion in departing upward to the maximum sentence pursuant to U.S. Sentencing Guidelines Manual § 4A1.3, p.s.

(1997). We affirm.

Hess had an offense level of ten. He was in criminal history category VI and his recommended guideline range was 24-30 months.

However, because Hess had accumulated fifty-six criminal history

points between 1988 and 1997, the probation officer recommended

that an upward departure under § 4A1.3 might be warranted. The district court departed upward by eleven offense levels, adding a level

for each three criminal history points Hess had accumulated beyond

the thirteen points necessary to place him in category VI, until it

reached offense level twenty-one and a guideline range of 77-96

months. The court found that each lower level was inadequate to

reflect the seriousness of Hess' prior criminal conduct and the likelihood that he would commit further crimes. On appeal, Hess argues

that the court failed to consider that Hess had been addicted to drugs

and alcohol since his teens and that none of his counted offenses

(chiefly breaking and entering and larcenies) resulted in personal

injury to his victims. He also contends that, even if a departure was

warranted, the extent of the court's departure was too great.

We review the court's decision to depart for abuse of discretion.

See Koon v. United States, 518 U.S. 81, 100 (1996). Under § 4A1.3,

a departure is encouraged if the defendant's criminal history significantly underrepresents his past criminal conduct or likelihood that he

will commit further crimes. An encouraged factor may be the basis

for a departure if it is not already accounted for in the applicable

guideline. See Koon, 518 U.S. at 96; United States v. Rybicki, 96 F.3d

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754, 758 (4th Cir. 1996). The court's decision that a departure is justified is reviewed de novo. See Rybicki, 96 F.3d at 757-58; United

States v. Barber, 119 F.3d 276, 282 (4th Cir.), cert. denied, 118 S. Ct.

457 (1997). Because Hess had a total of fifty-six criminal history

points, we find no error in the district court's decision to depart.

The district court must provide a principled basis for the extent of

a departure. See United States v. Gary, 18 F.3d 1123, 1131 (4th Cir.

1994). Here, the district court structured the departure by moving to

successively higher offense levels to account for as many of the

excess criminal history points as possible, a method of departing

above category VI which we approved in United States v. Cash, 983

F.2d 558, 561 & n.6 (4th Cir. 1992). Because the court provided a

clear rationale for the extent of the departure, we find that it did not

abuse its discretion in departing to offense level twenty-one and

imposing the statutory maximum sentence on each count to achieve

a sentence within the resulting guideline range.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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