(caption unavailable)

1 Chief Judge of the Southern District of Texas, sitting by
designation.
2 Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 92-9113
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
OTIS MAJOR JOHNSON,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:91 CR 77 A)
______________________________________________________
December 3, 1993
Before DUHÉ and EMILIO M. GARZA, Circuit Judges and BLACK1,
District Judge.
PER CURIAM:2
BACKGROUND
Appellant, Otis Johnson, pled guilty to being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). The district
court first sentenced Johnson under the Career Criminal Provisions
of 18 U.S.C. § 924(e), in part, because of a prior conviction for
attempted burglary under Texas law. Johnson was sentenced to a

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200-month term of imprisonment, a 5-year term of supervised
release, and a $50 special assessment. Based on our holding in
United States v. Martinez, 954 F.2d 1050 (5th Cir. 1992), that
attempted burglary was not "violent felony" under § 924(e) and
therefore cannot be used for enhancement purposes, we vacated his
sentence and remanded the judgment of the district court. United
States v. Johnson, No. 92-1064 (5th Cir. filed Sept. 8, 1992) (per
curiam).
On remand, the district court ordered that a new presentence
report (PSR) be prepared. In it the probation officer placed
Johnson's total offense level at 10 and his criminal history
category at VI. The applicable guideline range was imprisonment
for 24 to 30 months. At the sentencing hearing, the district court
adopted the findings of the PSR and found that an upward departure
was warranted. The court sentenced Johnson to 120 months
imprisonment, a 3-year term of supervised release, and a $50
special assessment. Johnson appeals.
DISCUSSION
I. Upward Departure
Johnson argues that the district court erred in upwardly
departing from the Sentencing Guidelines. The district court
relied on both § 5K2.0 and § 4A1.3 as the basis for its upward
departure. We will affirm a departure from the Guidelines if the
district court offers "acceptable reasons" for the departure and
the departure is "reasonable." United States v. Lambert, 984 F.2d
658, 663 (5th Cir. 1993) (en banc). Because we conclude that the

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district court's upward departure is appropriate under § 4A1.3, we
need not address the issues raised by Johnson under § 5K2.0.
Section 4A1.3, p.s. explicitly authorizes departure if 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." Johnson's
criminal history included the crimes of aggravated robbery with a
deadly weapon, attempted burglary of a building, misdemeanor
attempted burglary, and voluntary manslaughter. Johnson also
violated his parole. After reviewing the circumstances surrounding
these crimes, the district court detailed those factors that
contributed to the seriousness of Johnson's criminal history: the
nature of the previous offenses; the previous use of firearms; the
leniency of the prior sentences; and Johnson's propensity for
recidivism. Contrary to Johnson's argument, these reasons may
justify an upward departure. See, e.g., United States v. Laury,
985 F.2d 1293, 1310 (5th Cir. 1993) (holding that the district
court's reasons of "constant recidivism and displaying violent
behavior" justified the finding that the criminal history category
did not adequately reflect the seriousness of the defendant's past
criminal conduct); Lambert, 984 F.2d at 664 (concluding that the
district court gave "unimpeachable reasons for an upward
departure," one of which was the defendant's previous use of
weapons in his crimes); United States v. Carpenter, 963 F.2d 736,
745 (5th Cir.) (concluding that the district court was justified in
relying on the fact that the defendant received especially lenient

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treatment for killing a man to support upward departure), cert.
denied, 113 S. Ct. 355 (1992). Given Johnson's criminal history,
the district court did not err in finding that the criminal history
category inadequately reflected the seriousness of Johnson's past
criminal conduct.
Alternatively, Johnson argues that there is no factual basis
for the district court's reasons for departure. Findings of fact
that underlie a district court's sentencing decision are reviewed
under the clearly erroneous standard. United States v. Paden, 908
F.2d 1229, 1233 (5th Cir. 1990), cert. denied, 498 U.S. 1039
(1991). Having reviewed the record, we conclude that the district
court did not clearly err in finding facts sufficient to justify an
upward departure.
We turn to whether the departure from a guideline range of 24
to 30 months to the statutory maximum of 10 years was reasonable.
We conclude that it was. When a sentence falls within the
statutory limits, we will review it only for a "'gross abuse of
discretion.'" United States v. Huddleston, 929 F.2d 1030, 1031
(5th Cir. 1991) (quoting United States v. Juarez-Ortega, 866 F.2d
747, 748 (5th Cir. 1989)); see also Laury, 985 F.2d at 1310.
Under the requirements set forth in United States v. Lambert, the
district court must "explain why the criminal history category as
calculated under the guidelines is inappropriate and why the
category it chooses is appropriate. If the district court finds
that it is necessary to go beyond the guidelines, the court must
give adequate reasons why the guideline calculation is inadequate

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and why the sentence it imposes is appropriate." Lambert, 984 F.2d
at 662-63. In light of the defendant's extensive criminal history
and the fact that in the present offense, the defendant did not
merely possess the firearm, but also discharged it, we do not view
the imposition of a sentence at the statutory maximum a gross abuse
of discretion.
II. Due Process Violation
Johnson argues that the upward departure violates North
Carolina v. Pearce, 395 U.S. 711 (1969), which held that due
process limits a trial court's discretion in imposing harsher
sentences following a successful appeal. Pearce creates a
presumption of judicial vindictiveness when a judge imposes a more
severe sentence on a defendant during resentencing. Id. at 725-26.
The necessary predicate to the invocation of the presumption is a
finding that the sentence following appeal resulted in a harsher
penalty. Johnson was sentenced to 200 months imprisonment at his
first sentencing hearing and a 120 months at his resentencing.
Johnson contends that because his resentencing included an upward
departure whereas his first sentencing did not, the district
court's actions were sufficient to invoke the Pearce presumption.
We are unconvinced by this argument. It is undisputed that
Johnson's resentencing resulted in a decrease of his imprisonment
term. We find no due process violation.
CONCLUSION
For the foregoing reasons, Johnson's sentence is AFFIRMED.

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