United States of America v. Davis, 380 F.3d 183, 188 n.3 4th Cir. 2004 , cert. denied, U.S. Oct. 18, 2004 No.…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON T. MAJERCIK,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-04-56)
Submitted: August 5, 2005 Decided: August 16, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David H. Wilmoth, Elkins, West Virginia, for Appellant. Thomas E.
Johnston, United States Attorney, Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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1Majercik’s plea agreement contained an appellate waiver
provision, but because the Government has failed to assert the
waiver, we address the substance of Majercik’s claim.
2If the departure is justified, the appeals court must review
the extent of the departure deferentially. See United States v.
Davis, 380 F.3d 183, 188 n.3 (4th Cir. 2004), cert. denied, ___
U.S. ___ (Oct. 18, 2004) (No. 04-6377); see also 18 U.S.C.A.
§ 3742(e)(3)(C) (West Supp. 2004). However, Majercik did not argue
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PER CURIAM:
Jason T. Majercik pled guilty 1 to one count of bank fraud
in violation of 18 U.S.C. § 1344 (2000), and was sentenced to
sixty-three months’ imprisonment. Majercik’s only issue on appeal
is a challenge to the district court’s upward departure on the
basis of Majercik’s likelihood that he would commit other crimes.
Finding no error, we affirm.
Although Majercik’s appellate brief was filed several
months after the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005), it does not assert any claim based
upon that holding. Rather, it relies on pre-Booker authority to
assert that the district court’s decision to depart from the
Sentencing Guidelines range constituted an abuse of discretion
under Koon v. United States, 518 U.S. 81, 100 (1996). Following
Koon, we had concluded that a district court may depart upward from
a guidelines range if it identifies a factor that is an encouraged
basis for departure and is not taken into account by the applicable
guideline. United States v. Brock, 108 F.3d 31, 34 (4th Cir.
1997). 2 Under U.S. Sentencing Guidelines Manual § 4A1.3 (2002),3

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at trial, nor does he argue on appeal, the reasonableness of the
extent of the upward departure. Accordingly, we conclude Majercik
has waived the issue.
3Majercik was sentenced under the 2002 Guidelines.
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“[i]f reliable information indicates that the defendant's criminal
history category substantially under-represents the seriousness of
the defendant's criminal history or the likelihood that the
defendant will commit other crimes, an upward departure may be
warranted.” Our review of the record demonstrates that an upward
departure was well within the district court’s discretion because
Majercik’s extensive criminal history reflects an overwhelming
likelihood that he will commit other crimes.
Even applying Booker, we find no basis to conclude that
Majercik’s sentence must be revisited. In imposing a sixty-three
month sentence prior to Booker, the district court stated that it
would impose an identical sentence even if the guidelines were
treated as advisory. Because the alternative sentence assessed by
the district court is identical to Majercik’s actual sentence and
reasonable under the facts, Majercik’s sentence withstands review
following Booker.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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