United States v. Brass

* 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this opinion should not be published and is not precedent except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
F I L E D
July 29, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-11177
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIDNEY JAMES BRASS, also known as Sid Brass,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(2:03-CR-81-ALL)
Before BARKSDALE, DeMOSS, and DENNIS, Circuit Judges
PER CURIAM:*
Sidney James Brass appeals the 46-month sentence imposed
following his guilty-plea conviction for making false statements to
a bank. He contends the district court abused its discretion when
it upwardly departed from criminal history category II to criminal
history category V without setting forth the methodology for
departure. The district court’s decision to depart was permissible
under 18 U.S.C. § 3742(e)(3)(A) & (B). United States v. Bell, ___
F.3d ___, No. 03-20194 (5th Cir. 19 May 2004), 2004 WL 1114580 at

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*3. Therefore, we review the extent of the departure for abuse of
discretion and will affirm the sentence if the degree of the
departure is reasonable. Id.; United States v. Ashburn, 38 F.3d
803, 807 (5th Cir. 1994)(en banc).
Although a district court is required to explain both why the
criminal history category as calculated under the guidelines is
inappropriate and why the category it chooses is appropriate, it is
not required to engage in a mechanical, ritualistic approach of
specifying its reasons for rejecting each intermediate criminal
history category. United States v. Lambert, 984 F.2d 658, 662-63
(5th Cir. 1993)(en banc). The district court’s reasons for
rejecting the intermediate criminal history categories are implicit
in its reasons for departing upward. Id. at 663. Moreover,
departing from a guideline range of 21 to 27 months to 46 months’
imprisonment is reasonable when compared to other departures that
we have upheld. See United States v. Daughenbaugh, 49 F.3d 171,
174-75 (5th Cir. 1995); Ashburn, 38 F.3d at 809.
Bass also contends the district court erred by considering as
a basis for the departure: dissimilar conduct; and two previous
theft convictions which had already been used to compute his
criminal history category. These grounds were properly relied upon
for departure.
Bass has moved for leave to file a supplemental brief
contending that his sentence violates Blakely v. Washington, ___

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U.S. ___ (24 June 2004), 2004 WL 1402687; the motion is GRANTED.
Blakely does not apply to the United States Sentencing Guidelines.
United States v. Pineiro, ___ F.3d ___, No. 03-30437 (5th Cir. 12
July 2004), 2004 WL 1543170.
MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; AFFIRMED

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