* 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should not be published and is not precedent except under the limited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. 07-20633

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DWAYNE ALBERTO FURET

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CR-268-ALL

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges. 

PER CURIAM:*

Dwayne Alberto Furet appeals the 120-month sentence imposed following

his guilty-plea conviction for being a felon in possession of a firearm. Furet

argues that the district court erred in upwardly departing under U.S.S.G.

§ 4A1.3, p.s., based on the underrepresentation of his criminal history. He also

challenges the extent of the upward departure.

Because Furet challenged the decision to upwardly depart in the district

court, we review the decision of the district court to depart for abuse of

United States Court of Appeals

Fifth Circuit

F I L E D

June 5, 2008

Charles R. Fulbruge III

Clerk
No. 07-20633

1 His attorney requested at sentencing that the court “give him the low

[e]nd of the guideline range” and that the court “not upwardly depart.” 

2

discretion. See Gall v. United States, 128 S. Ct. 586, 591 (2007); United States

v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). We also review the extent of

departure for an abuse of discretion. See United States v. Allison, 447 F.3d 402,

407 (5th Cir. 2006). The Government urges that Furet did not object to the

extent of the departure at sentencing and that we should review that issue for

plain error. Furet argues for abuse of discretion review, maintaining that he

objected at sentencing.1 We need not reach the issue, as Furet’s claim fails

under either standard. We ultimately determine whether the sentence is

reasonable under 18 U.S.C. § 3553(a). See United States v. Zuniga-Peralta, 442

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

The district court’s decision to upwardly depart was based on the factors

in § 3553(a), including Furet’s history and characteristics,the need for adequate

deterrence, and the need to protect the public from future crimes by Furet. The

district court relied, in part, on Furet’s lengthy criminal history, his tendency

toward violent crimes, and the likelihood of prior lenient sentences. The district

court also noted that several of Furet’s prior convictions had not been included

in his criminal history score pursuant to U.S.S.G. § 4A1.1(c). Because the

upward departure advanced the objectives in § 3553(a) and is justified by the

facts of the case, the district court did not abuse its discretion in upwardly

departing from the advisory guideline range. See Zuniga-Peralta, 442 F.3d at

347; United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).

In challenging the extent of the district court’s departure, Furet asserts

that the district court committed reversible error by failing to specifically

address each intervening offense level when determining that a departure to

criminal history category VI and offense level 24 was warranted. The district

court determined that Furet’s likelihood of recidivism and the resultant risk to
No. 07-20633

3

the community warranted a sentence atthe statutory maximum. This reasoning

implicitly established the district court’s rationale for rejecting the intervening

levels, which satisfied the court’s burden. See United States v. Lambert, 984

F.2d 658, 663-64 (5th Cir. 1993) (en banc) (where the “district court set out

specifically the factors thatthe guidelines did nottake into account,”“[a]lthough

the court’s decision could have been more explicitly tied to the incremental

character of criminal history departures,” the factors set out by the court were

sufficient); see also id. at 664 (“Ordinarily the district court’s reasons for

rejecting intermediate categories will clearly be implicit, if not explicit, in the

court’s explanation for its departure from the category calculated under the

guidelines and its explanation for the category it has chosen as appropriate.”)

Given the facts of this case and the district court’s reasons for departing, Furet

has not shown that the court abused its discretion in determining the extent of

departure. See Lee, 358 F.3d at 328-29. The judgment of the district court is

AFFIRMED.