UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 00-4102
MIGUEL ANGEL LOPEZ-AVILA, a/k/a
Lucio Soreano-Dominguez, a/k/a
Felipe Noyola,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-221)

Submitted: August 22, 2000

Decided: October 17, 2000

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Arnold L.
Husser, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Miguel Lopez-Avila pled guilty to illegal reentry, 8 U.S.C.
§ 1326(a), (b)(2) (West 1999), and received a sentence of 108 months
imprisonment. On appeal, Lopez-Avila challenges the district court's
decision to depart upward from criminal history category VI pursuant
to U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1998). We
affirm.

Miguel Lopez-Avila illegally entered the United States in 1989 and
was deported in 1990. He returned to the United States illegally
within two months and was deported again in 1997. He again returned
illegally and, in 1998, with cocaine trafficking charges pending
against him in North Carolina, he pled guilty to illegal reentry.

Lopez-Avila had used numerous aliases and had three prior convic-
tions for second degree burglary, as well as convictions for breaking
and entering, assault on a female, assault with a deadly weapon (a
knife), trespassing, felonious possession of a weapon of mass destruc-
tion (a sawed-off shotgun), carrying a concealed weapon (scissors),
possession of marijuana, driving without a license, and shoplifting.
Because seven of Lopez-Avila's eleven prior convictions resulted in
sentences of less than 60 days imprisonment, the probation officer
suggested that category VI might under-represent the seriousness of
Lopez-Avila's past criminal conduct or the likelihood of his future
criminality.

At the sentencing hearing, the district court noted that Lopez-Avila
had been involved in crime steadily since he arrived in the United
States in 1989 and that he had five pending charges for cocaine traf-
ficking. The court decided that the likelihood of recidivism was very
high in Lopez-Avila's case, and that criminal history category VI did
not produce a guideline commensurate with the seriousness of Lopez-

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Avila's criminal record or the likelihood that he would continue to
commit crimes in the future. The court then departed from offense
level 21 to offense level 23, which yielded a guideline range of 92-
115 months. The court then imposed a sentence of 108 months
imprisonment.

We review the district court's decision to depart for abuse of dis-
cretion. See Koon v. United States, 518 U.S. 81, 98-99 (1996). A dis-
trict court may depart on the basis of an "encouraged factor" if the
applicable guideline does not already take it into account. See United
States v. Brock, 108 F.3d 31, 34 (4th Cir. 1997). The sentencing
guidelines expressly encourage departure when a defendant's criminal
history category, including category VI, does not adequately reflect
the seriousness of his past criminal conduct or the likelihood that he
will commit further crimes. See USSG § 4A1.3, p.s. (1998); United
States v. Cash, 983 F.2d 558, 560 (4th Cir. 1992). In deciding whether
to depart, the court should base its decision not only on the number
of prior offenses, but also on their nature, which is often a better indi-
cation of the seriousness of the defendant's criminal record. See
USSG § 4A1.3; Cash, 983 F.2d at 560-61.

Lopez-Avila argues that the court erred in departing because his
prior record was not extraordinary, his burglaries were in reality
crimes of stealth rather than crimes of violence, the lenient sentences
he received indicate that his prior offenses were not serious, and the
district court merely considered the number of his convictions rather
than their nature. We disagree. First, the fact that Lopez-Avila
received lenient sentences for some of his prior convictions only
underscored the number of criminal history points he accumulated in
spite of his lenient treatment. Second, the district court rejected
Lopez-Avila's argument that his burglaries were crimes of stealth
only, noting that a burglar always risks violence. And finally, the dis-
trict court's findings did not focus primarily on the number of Lopez-
Avila's prior convictions or even on the number of criminal history
points he earned, but on his demonstrated recidivism and the likeli-
hood that he would continue his criminal conduct in the future. We
find no abuse of discretion in the court's decision to depart.

After deciding to depart, the court properly structured the departure
by moving down the sentencing table to successively higher offense

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levels to find the appropriate guideline range. See USSG § 4A1.3;
United States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995). The court
made the necessary findings that the intervening levels were inade-
quate to reflect the seriousness of the defendant's prior record and the
likelihood that he would commit other crimes. See Cash, 983 F.2d at
562 n.7 (approving procedure described in United States v. Rusher,
966 F.2d 868, 884 (4th Cir. 1992)).

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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