UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 95-5774
ROBERT LEON LOGAN, a/k/a Thomas
Ray Logan, a/k/a Bobby Roy
Logan,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-95-20-A)

Submitted: August 22, 1996

Decided: September 12, 1996

Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis Dene, DENE & DENE, Abingdon, Virginia, for Appellant.
Robert P. Crouch, Jr., United States Attorney, Richard A. Lloret,
Assistant United States Attorney, Abingdon, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robert Leon Logan pled guilty to making false statements to a
United States Park Service Ranger to cover up a material fact in viola-
tion of 18 U.S.C.A. § 1001 (West Supp. 1996). The district court
departed upward from the sentencing guideline range of 6-12 months
and sentenced Logan to 41 months imprisonment. He appeals this
sentence, contending that the district court abused its discretion by
failing to accept recommendations in the plea agreement. He also
argues that he was given inadequate notice of the departure and that
the extent of the departure was an abuse of discretion. We affirm.

Logan has a long history of convictions for driving while impaired,
driving on a revoked license, and other offenses. In June 1995, Logan
was found by a Park Ranger slumped over the wheel of his car on the
Blue Ridge Parkway. He was highly intoxicated. Logan gave a false
name, date of birth, and place of residence. The next day he was
charged with making false statements. Logan pled guilty under a plea
agreement in which the government agreed to recommend a sentence
within the guideline range. The agreement stated that "any recom-
mendation or agreement by the United States Attorney concerning
sentencing issues contained in the plea agreement may be disregarded
by the Court at sentencing."

Logan's 25 countable criminal history points put him in criminal
history category VI. With an offense level of 4 (including a 2-level
reduction for acceptance of responsibility), Logan's guideline range
was 6-12 months. The probation officer suggested that an upward
departure might be appropriate because Logan's other convictions
(many for similar alcohol-related offenses) which were beyond the
applicable time period would have added another 25 criminal history
points. Moreover, other charges brought against Logan in the past had
been dropped because he could not be located. In addition, Logan told

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the probation officer he was not on probation or parole at the time of
the instant offense when in fact he had absconded from parole in
North Carolina and a parole violator warrant had been issued for him.

At Logan's sentencing hearing, despite the government's recom-
mendation of a sentence within the guideline range, the district court
decided to depart upward on the grounds listed by the probation offi-
cer. The court noted that Logan had engaged in continuous criminal
conduct of various kinds since becoming an adult and continued to
drive while drunk, despite his participation in alcohol treatment pro-
grams. Finding that Logan had 33 criminal history points above the
number necessary for category VI, the district court departed upward
to offense level 15. The court found that each intervening category
was inadequate to address the seriousness of Logan's conduct. The
guideline range was then 41-51 months; the court imposed a sentence
of 41 months.

We find first that Logan had adequate notice of a possible depar-
ture and of the grounds on which it might be made, as required by
Burns v. United States, 501 U.S. 129 (1991). Second, the court did not
abuse its discretion in rejecting the government's recommendation for
a sentence within the guideline range. Logan's plea agreement cor-
rectly stated that the court was not bound by the government's recom-
mendation and Logan concedes that he understood this when the plea
was entered. The district court's decision that the recommended sen-
tence was too light did not constitute a rejection of the plea agree-
ment. See United States v. Williams, 880 F.2d 804, 806 (4th Cir.
1989). Finally, the extent of the departure was not an abuse of discre-
tion. The district court followed the procedure for departing above
category VI required by United States v. Cash , 983 F.2d 558, 561 &
n.6 (4th Cir. 1992), cert. denied, 508 U.S. 924 (1993), and adequately
explained its reasons for departing upward by eleven levels.

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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