     Case: 13-30644      Document: 00512595505         Page: 1    Date Filed: 04/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit


                                    No. 13-30644
                                                                                       FILED
                                                                                   April 14, 2014
                                  Summary Calendar
                                                                                  Lyle W. Cayce
                                                                                       Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES CHRISTOPHER WEEKS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CR-296-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       James Christopher Weeks appeals the 192-month sentence imposed
following    his    guilty    plea    conviction     for   conspiracy      to     distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 846. He argues that
the district court plainly erred by failing to follow the method for calculating
the extent of the departure, which was 67 months above his guidelines range,
as set forth in U.S.S.G. § 4A1.3(a)(4)(B). He contends that the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-30644     Document: 00512595505     Page: 2   Date Filed: 04/14/2014


                                  No. 13-30644

was required under Section 4A1.3 to evaluate each successive criminal history
category and to state for the record that it considered each intermediate
adjustment but failed to do so. As he acknowledges, because he did not object
to his sentence in the district court, review is for plain error. United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Section 4A1.3 authorizes the district court to depart upward from the
guidelines range “[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.” § 4A1.3(a)(1); see United States v. Mejia-Huerta, 480 F.3d 713,
723 (5th Cir. 2007). An upward departure under Section 4A1.3 is made by
adjusting the defendant’s offense level “incrementally down the sentencing
table to the next higher offense level.” § 4A1.3(a)(4)(B). Although the district
court should consider, and state for the record that it has considered, each
intermediate offense level before arriving at the sentence it finds appropriate,
the district court is not required to explain why it rejected intermediate offense
levels, provided that its explanation for the departure makes clear, either
implicitly or explicitly, why the intermediate offense levels are inadequate and
why the chosen offense level is appropriate. United States v. Lambert, 984 F.2d
658, 662-63 (5th Cir. 1993) (en banc); United States v. Daughenbaugh, 49 F.3d
171, 175 (5th Cir. 1995).
      Although the district court did not explicitly state for the record that it
considered each intermediate adjustment, the record reflects that the district
court based the upward departure on Weeks’s under-represented criminal
history, which included unscored convictions for battery and aggravated
assault with a deadly weapon, and that the district court implicitly found that
intermediate adjustments to the guidelines range were inadequate and that



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                                 No. 13-30644

the extent and nature of Weeks’s criminal history warranted a 192-month
sentence. See United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994);
Lambert, 984 F.2d at 662. Further, although Weeks asserts that the 67-month
departure was substantial, this case is not among the “very narrow class of
cases” where the departure is “so great” that the district court must “explain
in careful detail why lesser adjustments in the defendant’s criminal history
score would be inadequate.” Lambert, 984 F.2d at 663. Even assuming that
further explanation was required by the district court, Weeks has not shown
that there is a reasonable probability that the district court would have
imposed an imprisonment term of less than 192 months if it had explicitly
followed the methodology required under § 4A1.3(a)(4)(B). See United States
v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




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