UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4011

JOHN GEORGE HORTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-97-15)

Submitted: August 31, 1999

Decided: September 23, 1999

Before NIEMEYER, HAMILTON, and WILLIAMS,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stephen V. Groh, Hagerstown, Maryland, for Appellant. David E.
Godwin, United States Attorney, Sherry L. Muncy, Assistant United
States Attorney, Elkins, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

John George Horton was previously sentenced to a term of sixty
months imprisonment following his guilty plea to possession of a fire-
arm after conviction of a felony. He appealed, alleging in part that the
district court erred in departing above criminal history category VI
pursuant to U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1997),
in light of Horton's twenty-four criminal history points. We affirmed
the district court's decision to depart, but remanded for an explanation
of the extent of the departure as required by United States v. Cash,
983 F.2d 558 (4th Cir. 1992), and United States v. Rusher, 966 F.2d
868 (4th Cir. 1992). See United States v. Horton , No. 98-4131 (4th
Cir. Oct. 26, 1998) (unpublished).

On remand, defense counsel presented the court with a chart which
extrapolated criminal history categories above category VI at the rate
of one new category for each additional three criminal history points
above twelve points, and suggested that a departure from offense
level 12 to offense level 15, and a resulting guideline range of 41-51
months, would be appropriate. The district court followed this sugges-
tion, departing from offense level 12 to level 15. The court explained
that offense levels 12, 13, and 14 were inadequate to account for Hor-
ton's lenient treatment of Horton by the state courts, including charg-
ing decisions and imposition of concurrent sentences for unrelated
offenses. The court also found Horton's recidivism and his propensity
for violence to be significant factors, and noted that the departure was
the one that Horton's "mechanical method" suggested. The new
guideline range was 41-51 months. The court imposed a sentence of
48 months.

In this second appeal, Horton claims that the district court erred in
departing upward based on arrests for which Horton received no con-
viction or sentence, and also erred in considering crimes for which
Horton was never charged. We find these claims to be without merit.
First, we have already affirmed the district court's decision to depart
based on the large number of criminal history points Horton had accu-
mulated. Second, a departure of three offense levels was amply justi-
fied and explained under the method urged by Horton himself through

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his attorney. The district court did not need to go further, but did so
in an attempt to give a more complete explanation for the extent of
the departure. We do not find that the court erred simply by reviewing
Horton's prior criminal conduct.

We therefore affirm the sentence. 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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