United States v. Gary

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50304
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD THOMAS GARY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. A-93-CR-161 and A-97-CR-137
--------------------
April 13, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Richard Thomas Gary (“Gary”) has appealed the district
court’s judgment sentencing him following: (1) the revocation of
the supervised release term imposed for his conviction for making
a false statement to influence the action of a bank and (2) his
guilty-plea conviction for theft of mail.
Because Gary’s brief fails to assert an argument challenging
the sentence imposed following the revocation of the supervised

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release term in his false statement case, Gary’s appeal of that
sentence has been abandoned. See Fed. R. App. P. 28(a)(9)(A);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
With regard to his sentence for theft of mail, Gary asserts
that the district court failed to adequately explain its reasons
for upwardly departing from the applicable sentencing guideline
range and that the extent of the upward departure was
unreasonable. A district court’s decision to depart from the
sentencing guidelines is generally reviewed for abuse of
discretion. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir.
1994)(en banc). However, since Gary failed to raise his present
arguments below, review is for plain error. See United States v.
Alford, 142 F.3d 825, 830 (5th Cir. 1998).
The district court based its upward departure on the grounds
that Gary’s criminal history category did not adequately reflect
the seriousness of Gary’s past criminal conduct or the likelihood
that Gary would commit other crimes. The district court’s
reasons for departure were acceptable and adequately explained.
See U.S.S.G. § 4A1.3; United States v. Chappell, 6 F.3d 1095,
1102 (5th Cir. 1993); Ashburn, 38 F.3d at 809. Furthermore, the
extent of the upward departure, from a maximum guideline sentence
of 21 months’ imprisonment to 36 months’ imprisonment, was
reasonable. See id. at 805-06; United States v. Rosogie, 21 F.3d
632, 634 (5th Cir. 1994); United States v. Lambert, 984 F.2d 658,
664 (5th Cir. 1993).
In light of the foregoing, the district court did not err,
plainly or otherwise, in upwardly departing from the applicable

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guideline range. Ashburn, 38 F.3d at 807. The judgment of the
district court is AFFIRMED.

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