                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3298
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Rodney Wayne Vagenas,                    *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 16, 2003

                                   Filed: February 7, 2003
                                    ___________

Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      WEBBER,* District Judge.
                               ___________

LOKEN, Circuit Judge.

      Rodney Wayne Vagenas pleaded guilty to mail theft in violation of 18 U.S.C.
§ 1708. The district court1 sentenced him to thirty months in prison and three years
of supervised release. Vagenas appeals, arguing that the court abused its discretion

      *
       The HONORABLE E. RICHARD WEBBER, United States District Judge for
the Eastern District of Missouri, sitting by designation.
      1
      The HONORABLE ORTRIE D. SMITH, United States District Judge for the
Western District of Missouri.
when it departed upward from his guidelines sentencing range of twelve to eighteen
months on the ground that “the likelihood of recidivism for Mr. Vagenas is high [and]
the sentencing guidelines for this particular offense do not adequately address the
likelihood of recidivism.” We affirm.

       Part 4A of the Sentencing Guidelines requires the sentencing court to
determine the defendant’s criminal history category based upon his relevant prior
offenses. The criminal history category is then combined with the defendant’s total
offense level to determine his guidelines sentencing range. The court is expressly
authorized to depart from this range if “the criminal history category does not
adequately reflect the seriousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3, p.s.

      Vagenas’s undisputed criminal history was summarized in his Presentence
Investigation Report. He was arrested for possession of methamphetamine in June
1994 and for stealing in October 1994. A Missouri state court imposed concurrent
six-year sentences for these offenses in February 1995. He was paroled in June 1995.
In August 1995, Vagenas was charged with four counts of forgery for cashing checks
he stole from the victims’ mailboxes. In April 1996, he was convicted of these
offenses. The state court revoked parole and imposed six-year sentences concurrent
with his probation revocation sentence.

       Released from custody in June 1998, Vagenas was arrested for stealing mail
from three victims in December 1998, resulting in a federal conviction and fifteen-
month sentence consecutive to his undischarged state sentence. He was incarcerated
from June 1999 until September 2001, when he was released to federal supervised
release. In February 2002, Vagenas committed the offense of conviction. He was
arrested at the scene of a one-car accident after troopers found in his vehicle twenty-
two items of mail belonging to sixteen victims. The court made his thirty-month



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sentence for mail theft consecutive to a twenty-four month sentence imposed upon
revoking his prior supervised release.

       On appeal, Vagenas argues that an upward departure is not warranted because
his criminal history category adequately represents his prior criminal conduct -- the
four prior misdemeanor convictions that were excluded in determining his criminal
history category were neither similar to the offense of conviction nor serious
dissimilar conduct; his three prior felony convictions were not enough to take this
case outside the Guidelines heartland; his history of criminal theft stems from a long-
standing substance abuse problem that he now intends to remedy; he has committed
no crimes of violence; and his criminal history is much less serious than the histories
reported in cases affirming § 4A1.3 upward departures, such as United States v.
Saffeels, 39 F.3d 833 (8th Cir. 1994).

       The criminal history provisions of the Guidelines reflect the intent “that a clear
message be sent to society that repeated criminal behavior will aggravate the need for
punishment with each recurrence.” U.S.S.G. Part 4A, intro. comment. To carry out
that intent, “[w]e have previously recognized that the district court may make an
upward departure [under § 4A1.3] where there is evidence of obvious incorrigibility
and a history of prior convictions for the same type of offense.” United States v.
Cook, 972 F.2d 218, 222 (8th Cir. 1992). In this case, Vagenas’s prior convictions
totaled fifteen criminal history points, placing him in Category VI, the highest
criminal history category. He has repeatedly committed mail theft within months of
his release from prison, and his latest offense involved mail theft from at least sixteen
victims. Though his repeated offenses over a relatively short period of time placed
him in the highest criminal history category, his guidelines sentencing range without
the upward departure would have resulted in no greater punishment than he received
for his prior mail theft offenses. In these circumstances, the district court did not
abuse its discretion by departing upward to a sentence of thirty months on the ground



                                          -3-
that the guidelines sentencing range did not “adequately address the likelihood of
recidivism.”

      The judgment of the district court is affirmed.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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