(caption unavailable)

* District Judge of the Northern District of Texas, sitting
by designation.
**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should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10751
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
ANTONIO RODRIQUEZ, Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:93-CR-126-Y-1)
(June 27, 1995)
Before HIGGINBOTHAM and PARKER, Circuit Judges, and McBRYDE*,
District Judge.
PER CURIAM:**
On June 6, 1993, Antonio Rodriquez became involved in a
dispute with Luis Gallardo in Fort Worth, Texas. Rodriquez drew
his gun and told Gallardo he would kill him. Gallardo's friends
"rushed" Rodriquez to prevent a shooting, and Rodriquez fled.

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Rodriquez returned to the scene while police were interviewing
witnesses. The police saw the gun in Rodriquez's car, which
Rodriquez admitted was his. At the time, Rodriquez had been
convicted in state court of murder and had been released on parole
after serving two-and-a-half years of his ten-year sentence.
Rodriquez pled guilty to being a felon in possession of a
firearm on January 24, 1994. The district court sentenced him to
115 months imprisonment, three years of supervised release, and
ordered him deported. Rodriquez appeals.
I.
Rodriquez challenges the district court's decision to depart
upwards in his sentencing, increasing his offense level from 17 to
23 and increasing his criminal history category from III to VI. We
reject his challenges to both of these increases.
Contrary to Rodriquez's argument, U.S.S.G. § 2K2.1 permits
upward departures greater than the four-level increase prescribed
in § 2K2.1(b)(5), if the circumstances warrant it. See
§ 2K2.1(c)(1)(A). Here, the court's findings at sentencing justify
its upward departure in offense level. The court found that
Rodriquez
(1) Pointed the gun at Luis Gallardo, apparently
with no more provocation than Gallardo's having told
Defendant to stop cursing in front of his children and to
leave Gallardo's home;
(2) Threatened to kill Gallardo at least twice, the
second time while pointing the gun at him, apparently in
front of Gallardo's children;
(3) Placed Gallardo in genuine and extreme fear for
his life, given the fact that Gallardo knew Defendant and
had known him since childhood and, presumably, knew he

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had murdered two men already; and
(4) Resisted the efforts of others to get him to
leave Gallardo's residence and then, after leaving,
returned to Gallardo's home with the gun still in his
possession, whereupon he was arrested by the policeman
who had responded to a call for assistance.
We similarly reject Rodriquez's challenge to the court's
increase of his criminal history category from category III to
category VI. He faults the court for "cursorily" rejecting
intermediate criminal history categories between III and VI.
However, "[w]e do not . . . require the district court to go
through a ritualistic exercise in which it mechanically discusses
each criminal history category it rejects en route to the category
that it selects." United States v. Lambert, 984 F.2d 658, 663 (5th
Cir. 1993) (en banc). The significant upward departure to category
VI is justified by the court's findings that:
(1) Defendant murdered two men, apparently
execution-style (both victims found in a car with bullets
through their brains), in 1985;
(2) In 1986, Defendant pleaded guilty [in state
court] to both murders and was assessed the extremely
lenient sentence of two ten-year concurrent sentences;
(3) Received at the Texas Department of Corrections
to begin service of his sentence on October 6, 1986,
Defendant was paroled on April 3, 1989, only two and one-
half years later;
(4) Defendant's parole was revoked last year
because of the instant offense,
(5) Based on reliable information, Defendant has
been involved in prior adult criminal conduct not
resulting in a criminal conviction which is similar to
his conduct in the instant case as follows:
(a) He was found in unlawful possession
of a firearm and, as a result, charged with
being a felon in possession on June 9, 1990.

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He was also intoxicated at the time. These
charges were dismissed only because the state
prosecutors learned of Defendant's indictment
in this case.
(b) On November 7, 1982, Defendant was
involved, though it's unclear how deeply, in a
shooting at a nightclub in Fort Worth. . . .
(c) While using an alias, Defendant
unlawfully carried a pistol on June 4, 1983,
either a .25 calibre automatic or a .380
calibre automatic, in a situation once again
suggesting a willingness to use a weapon and
not merely possess it.
The court based its departure on two factors for which § 4A1.3
permits departure. First, the court noted Rodriquez's "rather
extensive prior but similar adult criminal conduct not resulting in
conviction." Section 4A1.3(e) permits increasing criminal history
categories on that ground. Second, the court stated that at age
twenty-six, Rodriquez had received "extremely lenient" 10-year
concurrent sentences for double murder. The commentary to § 4A1.3
permits increasing criminal history categories of defendants with
long records of "serious, assaultive conduct" who had received
very light sentences in the past, especially "in the case of
younger defendants (e.g., defendants in their early twenties or
younger) who are more likely to have received repeated lenient
treatment, yet who may actually pose a greater risk of serious
recidivism than older defendants." The court's upward departure
was within the Guidelines.
II.
Rodriquez also argues that the district court lacked
jurisdiction to order him deported under 18 U.S.C. § 3583(d). He

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concedes that he did not object to the deportation order below.
However, since his argument challenges the district court's
jurisdiction, we may review it here. See, e.g., Kelly v. United
States, 29 F.3d 1107, 1112-13 (7th Cir. 1994).
For reasons stated in United States v. Quaye, No. 95-10191, we
hold that the district court lacked power to order Rodriquez
deported under § 3583(d).
The 1994 amendment to 8 U.S.C. § 1252a(d) authorizing district
courts to order aliens deported under certain circumstances applies
only to aliens whose guilty plea or adjudication of guilt is
entered after October 25, 1994. See note to 8 U.S.C. § 1252a(d).
Rodriquez pled guilty on January 24, 1994.
Accordingly, we MODIFY the judgment as follows and AFFIRM as
modified:
As a condition of supervised release, upon completion of
his term of imprisonment the defendant is to be
surrendered to a duly-authorized immigration official for
deportation in accordance with the established procedures
provided by the Immigration and Naturalization Act, 8
U.S.C. §§ 1101 et seq. As a further condition of
supervised release, if ordered deported, defendant shall
remain outside the United States.
MODIFIED AND AFFIRMED.

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