United States v. Davis

*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this opinion should not be published and is not precedent except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
FOR THE FIFTH CIRCUIT
No. 01-60972
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DAVIS, also known as “Kansas City”,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:01-CR-16-ALL-P)
_________________________________________________________________
July 11, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:
PER CURIAM:*
James Davis appeals the sentence imposed following his guilty
plea to one count of bank fraud. He contends that the Government
waived its right to file a motion for upward departure by failing
to file written objections to the presentence report (PSR). He
also asserts that the district court abused its discretion in
departing upward pursuant to U.S.S.G. § 4A1.3, which provides for
a departure when the defendant’s criminal history category

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significantly underrepresents his past criminal conduct or the
likelihood that he may commit further crimes.
Whether the Government waived its ability to move for an
upward departure by failing to object to the PSR is a question of
law reviewed de novo. See, e.g, United States v. Knight, 76 F.3d
86, 87 (5th Cir.), cert. denied, 518 U.S. 1011 (1996). An upward
departure is reviewed for abuse of discretion, see United States v.
Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc), cert. denied,
514 U.S. 1113 (1995); and the finding that a defendant’s criminal
history category inadequately represents the seriousness of his
past criminal conduct is reviewed for clear error, see United
States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993).
Based on our review, the Government was not required to lodge
objections to the PSR in order to preserve its right to move pre-
sentencing for an upward departure, particularly because the PSR
set forth a possible basis for departure. See United States v.
Bachynsky, 949 F.2d 722, 733-34 (5th Cir. 1991), cert. denied, 506
U.S. 850 (1992). And, Davis conceded at sentencing that he was not
prejudiced by the alleged untimely filing of the motion (ten days
prior to sentencing).
We further hold: the district court did not clearly err in
determining that Davis’ criminal history category underrepresented
the seriousness of his past criminal conduct; and there was no
abuse of discretion in departing on that basis. See Laury, 985

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F.2d at 1310. Under the circumstances presented to the district
court, the extent of the upward departure was reasonable. See
United States v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996), cert.
denied, 519 U.S. 974 (1996).
AFFIRMED

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