                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             November 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-10396
                         Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

SHERRI ANN KAETHER,

                                      Defendant-Appellant.

                      ______________________

          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:03-CR-251-I-A
                     ______________________

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

     Sherri Ann Kaether appeals her upward departure sentence for

unlawful possession of stolen mail.    Kaether contends that the

“non-serious” nature of her prior conviction for possession of

stolen mail was insufficient to warrant an upward departure and

that her commission of the same offense within a five-year period

failed to render her criminal record “atypically egregious.”


     *
      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this opinion should not be published and is not precedent except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.

                                 1
Based on the Sentencing Guidelines’ allowance for upward

departures based upon prior similar adult conduct that did not

result in a criminal conviction,1 Kaether draws the negative

inference   that there is no basis for a departure if the prior

similar adult conduct did result in a conviction.      Kaether also

argues that, because the guidelines assess additional criminal

history points for defendants who commit offenses while on

supervised release and/or within two years of their release from

confinement, it necessarily follows that increased punishment is

not intended for a defendant who, like Kaether, commits a new

offense beyond two years from release from incarceration and

after completion of a prior term of supervised release.

     With respect to the extent of the departure, Kaether argues

that the district court failed to explain why intervening

criminal history categories V and VI under-represented Kaether’s

risk of recidivism.   Kaether also contends that the district

court failed to distinguish her criminal record as more serious

than those of defendants falling within the intervening criminal

history categories.

     The district court’s decision to depart upward was warranted

since it was based on Kaether’s likelihood to recidivate.2         In

     1
      U.S. SENTENCING GUIDELINES MANUAL § 4A1.3(a)(2)(E) (2003).
     2
      See United States v. Bell, 371 F.3d 239, 243 (5th Cir. 2004)
(exercising de novo review over district court’s decision to
depart); United States v. McDowell, 109 F.3d 214, 218 (5th Cir.
1997) (“We find no clear error in the district court’s conclusion

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addition, the district court’s departure did not constitute an

abuse of discretion, and was adequately explained and justified

by the court.3

     For the first time on appeal, Kaether cites to Blakely v.

Washington4 and asserts that the district court’s upward

departure violated her Sixth Amendment rights since it was based

upon findings that were neither charged in the indictment nor

found by a jury beyond a reasonable doubt.   Kaether correctly

concedes that this argument is foreclosed by our decision in

United States v. Pineiro.5

     AFFIRMED.




that the likelihood of recidivism, in the light of McDowell’s prior
conduct, warranted an upward departure from the guidelines.”);
United States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir.
1989) (“‘[P]rior similar adult criminal conduct’ may indicate the
seriousness of the past crime and the possibility of future crimes
whether or not it has resulted in conviction.” (alteration in
original)).
     3
      See Bell, 371 F.3d at 243; United States v. Lambert, 984 F.2d
658, 663 (5th Cir. 1993) (en banc) (“We do not . . . require the
district court to go through a ritualistic exercise in which it
mechanically discusses each criminal history category it rejects en
route to the category it selects.”).
     4
      124 S.Ct. 2531 (2004).
     5
      377 F.3d 464, 473 (5th Cir. 2004), pet. for cert. filed (U.S.
July 14, 2004, No. 03-30437).

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