UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 96-4750
RICHARD GAIL YARWOOD, a/k/a
Richard G. Yarwood,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-96-112)

Submitted: August 29, 1997

Decided: November 5, 1997

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Richard Gail Yarwood appeals the 105-month sentence he received
after his guilty plea to possession of an unregistered firearm (a sawed-
off shotgun), 26 U.S.C. § 5841 (1994). He contends that the district
court abused its discretion in departing above criminal history cate-
gory VI by adding one offense level. See U.S. Sentencing Guidelines
Manual § 4A1.3, p.s. (1995). We affirm.

Yarwood was 52 years old at the time of sentencing. He had
numerous convictions for assault, intimidation, resisting arrest, and
similar offenses, which spanned his entire adult life and were often
committed while he was intoxicated. In the instant offense, Yarwood
carried the concealed sawed-off shotgun into a bar and, after an argu-
ment with his ex-girlfriend, pulled out the gun and threatened to shoot
her. Yarwood's 15 criminal history points were more than the 13
points necessary to put him in category VI. With an offense level of
21, his guideline range was 77-96 months. However, fifteen of his
prior criminal sentences did not count toward his criminal history
score because they were beyond the applicable time period. See
U.S.S.G. § 4A1.2(e). All were for alcohol-related assaults or alcohol-
related traffic offenses.

The government requested an upward departure, arguing that cate-
gory VI significantly under-represented the seriousness of Yarwood's
past criminal conduct and the likelihood that he would commit further
crimes, particularly in light of the alcohol abuse which was a factor
in many of his offenses and Yarwood's previous lack of interest in
treatment for alcoholism. The district court agreed with this view,
departed upward to offense level 22,* and imposed sentence at the top
of the new guideline range of 84-105 months.

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*Departures above criminal history category VI may be structured by
moving to higher offense levels. See United States v. Cash, 983 F.2d
558, 561 & n.6 (4th Cir. 1992).

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A sentencing court may depart from the guideline range if it identi-
fies a factor which is an encouraged basis for departure and is not
taken into account by the applicable guideline. See Koon v. United
States, 116 S. Ct. 2035, 2045 (1996). If the court determines that such
a factor is present, it must then decide whether the factor is of suffi-
cient importance that a departure should result. See United States v.
Wilson, 114 F.3d 429, 433 (4th Cir. 1997). An inadequate criminal
history category is an encouraged ground for departure under
U.S.S.G. § 4A1.3.

On appeal, Yarwood argues that the district court erred in basing
the departure on old convictions which were properly excluded under
the guidelines. He cites United States v. Rusher , 966 F.2d 868, 882
(4th Cir. 1992), which held that outdated convictions may be used as
a basis for departure only if they demonstrate a significant tendency
to serious crime which distinguishes the defendant from the typical
offender. He also claims that the court failed to explain what aspect
of his criminal history was not adequately accounted for under the
guideline, and based the departure in part on his conduct in the instant
offense.

Although the district court's explanation of the basis for the depar-
ture was not a model of clarity, it is apparent from an examination of
the record that the court was swayed by the continuing nature of Yar-
wood's criminal conduct and the lenient sentences he had received,
the fact that some of his more recent offenses occurred soon after he
was released from custody, and his failure to deal with his alcohol
abuse--all predictors of a likelihood of future criminality which the
guideline did not take into account. Having determined that criminal
history category VI did not adequately represent Yarwood's criminal
past and (more importantly in this case) his likelihood of recidivism,
the court found that a departure should result. Applying the test set
out in Koon, we find that the district court did not abuse its discretion
in departing by one level and adding nine months to Yarwood's sen-
tence.

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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