United States Court of Appeals

Fifth Circuit

FILED

July 18, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10171

 

UNITED STATES OF AMERICA 

Plaintiff - Appellee,

versus

MARK ELLIOTT SMITH

Defendant - Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

 

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

I

Mark Elliott Smith was charged in a two-count indictment with

mail fraud, in violation of 18 U.S.C. § 1341 (Count One), and

interstate transportation of a stolen car, in violation of 18

U.S.C. § 2312 (Count Two). In November 1999, Smith met Deanna

Miller in an internet chat room, convinced her that he loved her,

and sent her three $10,000 checks drawn on an invalid account.

Miller deposited one of the checks and, a week later, Smith, who

had come to Iowa from Texas to visit her, took her shopping for a

car. Miller made a $5,000 down payment on a $25,000 BMW and

financed the remaining balance. Smith persuaded her to let him

drive the new BMW back to Texas with the false representation that
2

he would return. Miller later realized that the checks Smith had

given her were worthless, and she reported the BMW stolen.

Earlier, in June 1999, Smith met Margie Jane Hill of Caldwell,

Idaho, in an internet chat room and began a relationship with her

that she believed was romantic. In October 1999, Smith sent a

fraudulent $10,000 check to Hill via U.S. mail and Hill deposited

it. Smith then told her that he had underestimated his bills and

asked her to wire him $700 in cash. Although she was unable to do

so until the $10,000 check cleared, Hill, believing the money to be

in her account, spent more than $7,000 on food and clothing for

herself and her children and grandchildren.

Smith pleaded guilty to Count One of the indictment, pursuant

to a written plea agreement. After initially accepting it, the

district court later rejected the agreement after the presentence

report (PSR) was prepared. The PSR explained that Smith routinely

met women on internet chatrooms with the intent to defraud them.

Smith described himself as a “con man” and admitted that he has

been “conning” women for over 11 years, averaging one woman every

three months but occasionally juggling as many as five women at a

time. The PSR detailed Smith’s extensive criminal history,

involving 20 years’ worth of convictions and probation revocations

arising out of persistent theft, forgery, and fraud.

After reviewing the PSR, the district court contacted counsel

to inform them that it was inclined to reject the plea, stating:

This defendant is a one-man crime wave.
3

Apparently he has absolutely no remorse for

his criminal conduct. . . . I don’t think

anything is going to work with this defendant

other than an extremely long [] term of

imprisonment. 

An upward departure in this case, if the

statutory sentencing permissible [sic] would

allow it to 10 or 15 years, would be entirely

appropriate under the facts of this case.

And, of course, that wouldn’t be permitted if

I were to accept the plea agreement and

sentence on the basis of the offense of

conviction, which has a five-year maximum.

The district court noted that a plea of guilty to Count Two,

interstate transportation of a stolen vehicle, would entail a

higher statutory maximum, and it expressed concern that the

Government intended to dismiss that count. The Government

responded that it did not oppose rejection of the plea and that it

had only agreed to dismiss Count Two in an effort to “move the

case.”

The district court thereafter rejected the plea agreement,

explaining that “[i]n my view, a sentence that could be imposed

pursuant to your plea agreement would not meet the objectives of

sentencing.” Smith then withdrew his plea. He subsequently

pleaded guilty to Count Two, pursuant to a written plea agreement.

An amended PSR was prepared, which determined Smith’s offense level

to be 13 and his criminal history points to be 29--putting him well

into Criminal History Category (CHC) VI, the highest category--

subjecting him to a guidelines range of 33 to 41 months’
1 See U.S.S.G. Ch.5, Pt.A (Nov. 1998) (sentencing table). Although the November

2002 guidelines were in effect at the time of sentencing, the probation officer

had used the November 1998 version of the sentencing guidelines when preparing

the PSR, having determined that the latter was in effect on the date the offense

was committed. See U.S.S.G. § 1B1.11(b)(1) (allowing use of guidelines in effect

at time offense was committed to avoid violation of ex post facto clause); but

see 18 U.S.C. § 3553(a)(4)(A) (directing use of guidelines in effect on the date

defendant is sentenced). Neither party has objected to use of the 1998 version--

which in any case does not differ in relevant part from the 2002 version--and we

refer to the former throughout. See Untied States v. Painter, 375 F.3d 336, 338

n.2 (5th Cir. 2004).

4

imprisonment.1 In addition to Smith’s extensive criminal history,

the PSR noted that Smith was under investigation in Texas for

having passed $125,000 in worthless checks in March 2000. Charges

were also pending against Smith in Dallas for theft of more than

$20,000, arising out of his purchase of a 2000 Ford Expedition with

a fraudulent $20,000 check in November 2001, as well as in Tarrant

County for passing $2,346.06 in “hot checks” in April 2001. Smith

received no criminal history points for any of these charges.

The PSR indicated that an upward departure would be warranted,

pursuant to U.S.S.G. § 4A1.3, because Smith is a habitual criminal

who has not been deterred by probation or brief prison terms and

because his criminal history category did not adequately reflect

the seriousness of his criminal past or the likelihood that he will

commit future crimes. Because his 29 total criminal history points

reflected large-scale fraud cases similar in nature to the instant

offense, the PSR concluded that Smith’s criminal record “is

egregious and places him outside the ‘heartland’ of cases normally

seen by the Court.” 
5

Smith objected to the PSR, asserting that an upward departure

was not warranted because his CHC of VI fully took into account his

criminal past. He renewed his objection at sentencing and

presented the testimony of both his ex-wife and his common-law wife

to the effect that his problems arose out of his difficult

childhood and that he was a good man who was needed and loved by

his family. Smith further asserted that, despite his criminal

past, an upward departure was not warranted because he had no

history of violence or drug use.

In February 2003, the district court overruled Smith’s

objection, determining that his criminal history score did not

adequately reflect the seriousness of his past conduct or the

likelihood that he would commit other crimes. The district court

stated that it had considered the different sentencing levels that

could be imposed and concluded that a sentence at the topmost level

was appropriate and would achieve the sentencing objectives of

punishment, deterrence, and incapacitation of the offender for the

protection of the public. It therefore sentenced Smith to the

statutory maximum of 120 months, followed by a three-year

supervised-release term, and ordered him to pay $35,200 in

restitution. The district court imposed Smith’s sentence to run

consecutively to any state or federal sentence he might receive.

Smith timely appealed.

II

A
2 See United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 1995); United States

v. Foy, 28 F.3d 464, 472 (5th Cir. 1994); see also Santobello v. New York, 404

U.S. 257, 262 (1971) (determining that a defendant has no absolute right to have

a guilty plea accepted and that “[a] court may reject a plea in exercise of sound

judicial discretion”).

3 United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).

4 See FED. R. CRIM. P. 11(e)(3)-(4). The Federal Rules of Criminal Procedure were

amended effective December 1, 2002. Because Smith’s plea was rejected and

withdrawn in October 2002, citations to Rule 11 are to the version then in

effect. At that time, Rule 11(e)(3)-(4) provided, in relevant part:

(3) Acceptance of a Plea Agreement. If the court

accepts the plea agreement, the court shall inform the

defendant that it will embody in the judgment and

sentence the disposition provided for in the plea

agreement.

(4) Rejection of a Plea Agreement. If the court rejects

the plea agreement, the court shall, on the record,

inform the parties of this fact, advise the defendant

personally in open court or, on a showing of good case,

in camera, that the court is not bound by the plea

agreement, afford the defendant the opportunity to then

withdraw the plea, and advise the defendant that if the

defendant persists in a guilty plea or plea of nolo

contendere the disposition of the case may be less

favorably to the defendant than that contemplated by the

plea agreement.

FED. R. CRIM. P. 11(e).

6

We first address whether the district court erred in rejecting

the initial plea agreement to Count One of the indictment. We

conclude that it did not.

A district court’s rejection of a plea agreement is reviewed

for an abuse of discretion.2 A district court “abuses its

discretion if it bases its decision on an error of law or a clearly

erroneous assessment of the evidence.”3

Rule 11 of the Federal Rules of Criminal Procedure provides

that the district court may accept or reject a plea agreement.4

Rule 11 does not limit a district court’s discretion in rejecting
5 FED. R. CRIM. P. 11(e)(4). The district court in the present case took the steps

necessary to comply with this rule.

6 See Crowell, 60 F.3d at 205-06; Foy, 28 F.3d at 472; United States v. Bean, 564

F.2d 700, 704 (5th Cir. 1977).

7 See U.S.S.G. § 6B1.2(a), p.s.

8 See id.; United States v. Mizell, 88 F.3d 288, 291 (5th Cir. 1996); Crowell,

60 F.3d at 206; Foy, 28 F.3d at 473.

7

a plea agreement.5 A district court may properly reject a plea

agreement based on the court’s belief that the defendant would

receive too light of a sentence.6 Under the guidelines, a court is

counseled to reject the plea agreement if it determines that

accepting the plea agreement will undermine the statutory purposes

of sentencing or the sentencing guidelines.7 Moreover, a court is

well-advised to reject a plea agreement that dismisses a charge if

it finds that the remaining charges do not adequately reflect the

seriousness of a defendant’s actual offense behavior.8

The district court did not abuse its discretion in rejecting

the initial plea agreement after reviewing the PSR. The PSR

indicated that Smith had an extensive history of theft, fraud, and

forgery convictions, with outstanding and/or uncharged criminal

conduct involving eight more women and $147,000. The district

court did not abuse its discretion in concluding that the plea

agreement did not adequately reflect the seriousness of the

offense, was unduly lenient, and would not meet the objectives of

sentencing given Smith’s extensive criminal history, persistent
9 See Crowell, 60 F.3d at 205-06 (concluding district court did not abuse its

discretion in rejecting plea agreement as unduly lenient given large number of

victims and protracted course of fraudulent activity); see also U.S.S.G §

6B1.2(a), p.s.

10 See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc);

see also United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005); United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,

(U.S. Mar. 31, 2005) (No. 04-9517). 

11 Infante, 404 F.3d at 394; Mares, 402 F.3d at 520; United States v. Vasquez,

216 F.3d 456, 459 (5th Cir. 2000) (citing United States v. Olano, 507 U.S. 725,

732-35 (1993)).

12 Mares, 402 F.3d at 520 (quoting United States v. Cotton, 535 U.S. 625, 631

(2002)).

13 FED. R. CRIM. P. 11(e)(1) (“The court shall not participate in any discussions

between the parties concerning any such plea agreement.”); United States v.

Miles, 10 F.3d 1135, 1139 (5th Cir. 1994).

8

criminal conduct, and large number of victims.9

B

Smith’s argument that the district court improperly engaged in

plea negotiations is equally unavailing. Because Smith raised this

argument for the first time on appeal, we review it only for plain

error.10 In order to establish plain error, Smith must show: (1)

error, (2) that is clear or obvious, and (3) that affects

substantial rights.11 “‘If all three conditions are met an

appellate court may then exercise its discretion to notice a

forfeited error but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings.’”12

A district court is absolutely prohibited from participating

in plea negotiations.13 In United States v. Miles, we held that

“Rule 11 requires that a district court explore a plea agreement
14 Miles, 10 F.3d at 1140.

15 Crowell, 60 F.3d at 203.

16 Id. at 204.

17 Id.

9

once disclosed in open court; however, it does not license

discussion of a hypothetical agreement that it may prefer.”14

Similarly, in United States v. Crowell, we explained that 

although the district court may state its

reasons for rejecting a plea agreement, it may

not also suggest the plea agreements that

would be acceptable. When a court goes beyond

providing reasons for rejecting the agreement

presented and comments on the hypothetical

agreements it would or would not accept, it

crosses over the line established by Rule 11

and becomes involved in the negotiations.15

The fact that the parties rely on the district court’s

comments in fashioning a subsequent plea agreement is not

determinative of whether the district court engaged in plea

negotiations.16 Rather, when evaluating a district court’s comments

concerning a plea agreement, “[t]he proper inquiry is whether the

district court was actively evaluating a plea agreement, as the

court is required to do, or whether the court is suggesting an

appropriate accommodation for a subsequent plea agreement,

something this court found prohibited in Miles.”17

The district court did not engage in plea negotiations when it

rejected Smith’s initial plea. Instead, as explained above, it

properly stated its reasons for rejecting the plea agreement.

Smith’s argument that the district court effectively engaged in
18 See United States v. Jeter, 315 F.3d 445, 449 (5th Cir. 2002).

19 542 U.S. 296 (2004).

20 125 S.Ct. 738 (2005) (holding mandatory application of federal sentencing

guidelines runs afoul of Sixth Amendment and excising both 18 U.S.C.

§ 3553(b)(1), which made guidelines mandatory, and 18 U.S.C. § 3742(e), which

governed standards of review and referred to § 3553(b)(1)).

21 Id. at 769 (“[W]e must apply today’s holdings--both the Sixth Amendment

holding and our remedial interpretation of the Sentencing Act--to all cases on

direct review.” (citing Griffith v. Kentucky, 479 U.S. 314 (1987))).

10

plea negotiations by stating that it felt constrained by the

statutory maximum of the proposed initial plea is without merit.

The district court merely expressed its concerns with the initial

plea agreement. It did not dictate the outcome of any subsequent

plea negotiations, nor did it specifically state that it would only

accept a plea to Count Two. Because the district court neither

interfered with ongoing plea negotiations, as in Crowell, nor

specified what plea agreement would be acceptable, as in Miles, it

did not run afoul of Rule 11(e)(1).18 Consequently, Smith has not

demonstrated any error, plain or otherwise, under Rule 11(e)(1).

C

In a supplemental brief filed subsequent to Blakely v.

Washington,

19 Smith argues that his Sixth Amendment rights were

violated by the district court’s upward departure based upon

conduct to which Smith did not plead guilty and for which Smith was

not convicted. United States v. Booker,

20 decided while the present

case was pending on direct appeal, applies.21 Because this issue

was raised for the first time on appeal, our review is again for
22 Infante, 404 F.3d at 394; Mares, 402 F.3d at 520. 

23 See Infante, 404 F.3d at 394-95; Mares, 402 F.3d at 522; see also United

States v. Creech, 408 F.3d 264, 272 (5th Cir. 2005); cf. United States v.

Pennell, 409 F.3d 240, 245-46 (5th Cir. 2005). 

11

plain error.22

Smith has not demonstrated that his substantial rights were

affected; there is no indication in the record that the district

court would have imposed a lower sentence if the guidelines had

been advisory at the time.23 Indeed, it is plain that the district

court judge would not have given a lesser sentence, given the stern

statements and discretionary upward departure to the statutory

maximum. Smith’s Booker challenge fails.

D

Finally, we turn to Smith’s argument that the district court

erred in upwardly departing from the guidelines to the statutory

maximum. This argument also fails to persuade.

Prior to 2003, our review of departure decisions was for abuse
24 See Koon v. United States, 518 U.S. 81, 91 (1996) (“The appellate court should

not review the departure de novo, but instead should ask whether the sentencing

court abused its discretion.”); id. at 100 (noting that just because “a departure

decision, in an occasional case, may call for a legal determination does not

mean, as a consequence, that parts of the review must be labeled de novo while

other parts are labeled an abuse of discretion” and pointing out that this

unitary abuse-of-discretion standard “includes review to determine that the

discretion was not guided by erroneous legal conclusions”); United States v.

Hefferon, 314 F.3d 211, 227 (5th Cir. 2002) (“We review the district court’s

decision to depart upward for abuse of discretion and shall affirm an upward

departure if (1) the district court gives acceptable reasons for departing, and

(2) the extent of the departure is reasonable.”); United States v. Harris, 293

F.3d 863, 871 (5th Cir. 2002) (“We review a district court’s departure from the

range established by the Guidelines for abuse of discretion . . . .”); see also

United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc).

25 18 U.S.C. § 3742(e) (1994) read in relevant part:

Consideration.--Upon review of the record, the court of

appeals shall determine whether the sentence . . . (3)

is outside the applicable guideline range, and is

unreasonable, having regard for--

(A) the factors to be considered in

imposing a sentence, as set forth in

chapter 227 of this title [§ 3551 et seq.];

and

(B) the reasons for the imposition of the

particular sentence, as stated by the

district court pursuant to the provisions

of section 3553(c) . . . .

26 Prosecutorial Remedies and Other Tools to End the Exploitation of Children

Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, § 401(d), 117 Stat. 650, 670

(Apr. 30, 2003); see Painter, 375 F.3d at 338; United States v. Bell, 371 F.3d

239, 242-43 (5th Cir. 2004); United States v. Lee, 358 F.3d 315, 326 (5th Cir.

2004).

27 Bell, 371 F.3d at 242-43.

28 125 S. Ct. at 764.

12

of discretion,24 pursuant to § 3742(e).25 In April 2003, Congress

amended § 3742(e), altering our standard of review with respect to

the departure decision to de novo.

26 Under this scheme, while the

decision to depart was reviewed de novo, the degree of departure

was still reviewed for abuse of discretion.27 Then, in January

2005, the Supreme Court in Booker excised § 3742(e),28 leaving the
29 Id. at 765-66; Mares, 402 F.3d at 518. 

30 Booker, 125 S. Ct. at 765.

31 18 U.S.C. § 3553(a) reads:

(a) Factors to be considered in imposing a sentence.--The court

shall impose a sentence sufficient, but not greater than necessary,

to comply with the purposes set forth in paragraph (2) of this

subsection. The court, in determining the particular sentence to be

imposed, shall consider--

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the

offense, to promote respect for the law,

and to provide just punishment for the

offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in

the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for . . . the applicable category of offense

committed by the applicable category of defendant as set

forth in the guidelines . . .;

(5) any pertinent [sentencing guidelines] policy

statement . . .[;] 

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been

13

appellate courts to review sentences for “reasonableness.”29 The

Court explained that it was essentially returning to the standard

of review provided by the pre-2003 text, which directs us “to

determine whether the sentence ‘is unreasonable’ with regard to

§ 3553(a).”30 Section 3553(a)31 remains in effect, and its factors
found guilty of similar conduct; and

(7) the need to provide restitution to any victims of

the offense.

32 Booker, 125 S. Ct. at 766; see also Mares, 402 F.3d at 519.

33 402 F.3d at 519.

34 Mares, 402 F.3d at 519 n.7; see also United States v. Angeles-Mendoza, 407

F.3d 742, 754 & n.26 (5th Cir. 2005).

35 Mares, 402 F.3d at 519.

14

guide us in determining whether a sentence is unreasonable.32

We explained, in United States v. Mares, that where the

sentencing judge, in the exercise of discretion, imposes a sentence

“within a properly calculated Guideline range, in our

reasonableness review we will infer that the judge has considered

all the factors for a fair sentence set forth in the Guidelines”

and that “it will be rare for a reviewing court to say such a

sentence is ‘unreasonable.’”33 In Mares, we included in such

“Guidelines sentences” a “sentence that has been adjusted by

applying a ‘departure’ as allowed by the Guidelines.”34 If the

district court decides to impose a “non-Guideline sentence,” a more

thorough explanation is required.35

The district court first determined the applicable guidelines

range to be 33-41 months, and there is no challenge before us to

this determination. At the sentencing hearing, the court then

explained its reasons for departing from the guidelines range to a

sentence of 120 months, the statutory maximum, as follows:

Section 4A1.3 of the guidelines provides

that if reliable information indicates that
15

the criminal history category does not

adequately reflect the seriousness of the

defendant’s past criminal conduct or the

likelihood that the defendant will commit

other crimes, the Court may consider imposing

a sentence departing from the otherwise

applicable guideline range.

Based on that provision, I think there

should be a departure in this case and a

significant departure. Reliable information

the Court has clearly indicates that the

criminal history category in this case does

not adequately reflect the seriousness of this

defendant’s past criminal conduct or the

likelihood that he will commit other crimes.

I’ve considered the different levels of

sentencing that can be imposed and I’ve

concluded that a sentence at the top of the

statutory sentence would be the appropriate

sentence in this case, taking into account all

the objectives of sentencing.

Therefore I’m ordering, adjudging, and

decreeing that the defendant be committed to

the custody of the Bureau of Prisons to serve

a term of imprisonment of 120 months. As I’ve

indicated, that sentence is a departure from

the guideline range pursuant to U.S.S.G.

Section 4A1.3. The defendant is a habitual

criminal who has not been deterred by

probation or parole, supervision, brief jail

terms, or prison sentences. He has

established a pattern of criminal livelihood.

There is reliable information that the

Criminal History Category VI classification

does not adequately reflect the seriousness of

the defendant’s past criminal conduct or the

likelihood that he will commit other crimes. 

. . .

He has a total of 29 criminal history

points which reflect large-scale fraud cases,

similar in nature to the instant offense. The

defendant’s criminal record is egregious and

places him outside the heartland of cases

normally seen by the Court. And I have moved
36 See U.S.S.G. § 4A1.3, p.s.; see also Ashburn, 38 F.3d at 809; United States

v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc).

37 U.S.S.G. § 4A1.3, p.s.

38 There is no challenge before us to the adequacy of the district court’s

written explanation as such, and we confine our inquiry to the explanation given

at the sentencing hearing. In the written judgment, the explanation for

departure consisted of a single line: “The sentence was an upward departure for

the reasons stated from the bench at the sentencing hearing.” United States v.

Smith, No. 4:02-CR-081-A(01), at *5 (N.D. Tex. Feb. 12, 2003) (judgment)

(McBryde, J.). 

A district court is required to explain the reasons for its sentence in

open court, and, per the PROTECT Act, which took effect after the judgment in the

present case, a district court must also provide its reasons in its written order

of judgment when the sentence is outside the relevant guidelines range. See 18

U.S.C. § 3553(c); PROTECT Act, Pub. L. No. 108-21, § 401(c), 117 Stat. 650, 669-

70 (adding writing component to § 3553(c)); see also Painter, 375 F.3d at 338 n.1

(PROTECT Act applies retroactively to cases on direct review) (citing Bell, 371

F.3d at 241-42). This requirement survives Booker. See Mares, 402 F.3d at 519

n.8.

We note that in United States v. Lee, we affirmed an upward-departure

sentence by the same judge as in the present case, pursuant to a written judgment

issued within days of the present case, and containing an identical explanation

for the departure. See No. 4:01-CR-015-A(01), at *4 (N.D. Tex. Feb. 3, 2003)

(judgment) (McBryde, J.) (“The sentence was an upward departure for the reasons

16

incrementally down the Criminal History

Category VI and determined that a sentence of

120 months, the statutory maximum sentence

that can be imposed, will achieve the Court’s

sentencing objectives of punishment,

deterrence, and incapacitation of the offender

for the protection of the public.

The district court duly followed the direction given by the

policy statement in U.S.S.G. § 4A1.3 for upward departures from a

CHC of VI.36 Smith acknowledges that a sentencing judge may

upwardly depart from the guidelines range “when the criminal

history category significantly under-represents the seriousness of

the defendant’s criminal history or the likelihood that the

defendant will commit further crimes”37--precisely the basis of the

district court’s sentence here. The district court’s explanation

is adequate.38 We are persuaded, guided by the factors in §
stated from the bench at the sentencing hearing.”), aff’d, 358 F.3d 315, 326 (5th

Cir. 2004); see also Bell, 371 F.3d at 243 n.12; cf. United States v. Andrews,

390 F.3d 840, 850 (5th Cir. 2004).

39 See 18 U.S.C. § 3553(a).

40 See United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995)

(affirming departure from guidelines maximum of 71 months to sentence of 240

months, an increase of 338%, or 169 months); United States v. Rosogie, 21 F.3d

632, 633-34 (5th Cir. 1994) (departure from guidelines maximum of 37 months to

sentence of 150 months, an increase of over 400%, or 113 months, is reasonable).

41 See Rosogie, 21 F.3d at 634 (affirming, with no indication that Appellant had

a violent criminal history, significant upward departure as reasonable given that

“Appellant’s deceptive, fraudulent offenses and criminal history were of the kind

and to the degree that were not adequately taken into consideration by the

sentencing guidelines,” that Appellant’s criminal history points were almost

double those necessary for CHC VI, and that “Appellant presented a high risk of

recidivism and nothing short of incarceration . . . stopped him from committing

additional crimes”).

17

3553(a), that the sentence imposed was reasonable for the reasons

given by the district court.39

Smith points to the fact that his sentence was increased from

a guidelines maximum of 41 months up to 120 months--an increase of

nearly 300% and a magnitude of some 79 months--as evidence that the

sentence is “severe.” This tact is unavailing, as we have

previously upheld comparable increases, in terms of both percentage

and magnitude.40 That Smith has no history of “drug or alcohol use

or abuse and no incidents of violence”--another argument pressed by

Smith--likewise does not indicate here that the sentence was

unreasonable, especially in light of the reasons given by the

district court.41 We further note that Smith’s 29 criminal history

points are more than double the 13 points that were required for a
42 See Rosogie, 21 F.3d at 634 (affirming upward departure as reasonable and

noting that “Appellant’s criminal history points were almost double those

necessary for category VI”); see also Lee, 358 F.3d at 328 (affirming upward

departure, noting that defendant’s 21 criminal history points were eight more

than that required for CHC VI); Daughenbaugh, 49 F.3d at 175 (affirming upward

departure, noting Appellant’s criminal history score was nearly twice that

required for CHC VI).

43 Lee, 358 F.3d at 328 (quoting U.S.S.G. § 4A1.3, p.s.).

18

CHC of VI.42 As we have previously explained, although a CHC of VI

“is the highest criminal history category, the sentencing

guidelines nonetheless contemplate that ‘there may, on occasion, be

a case of an egregious, serious criminal record in which the

guideline range for Criminal History Category VI is not adequate to

reflect the seriousness of the defendant’s criminal history.’”43

In short, we are persuaded that the sentence was reasonable.

III

For the foregoing reasons, the judgment of the district court

is AFFIRMED.