                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3741
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the Eastern
                                      * District of Arkansas.
Michael James Longoria,               *
                                      *      [UNPUBLISHED]
           Defendant - Appellant.     *
                                 ___________

                             Submitted: June 15, 2006
                                Filed: June 26, 2006

                                   ___________

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Michael James Longoria pled guilty without a plea agreement to five counts of
possession of counterfeit checks, in violation of 18 U.S.C. § 513(a). The district
court1 sentenced him to 48 months imprisonment, and Longoria appeals, alleging that
the district court improperly departed upward and imposed an excessive and
unreasonable sentence. We affirm.



      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
       Blank checks and furnishings which had been purchased with counterfeit
checks were recovered from Longoria's residence during execution of a search
warrant. Following his indictment, a presentence report (PSR) was prepared. The
PSR calculated the loss from Longoria's offenses to be $9,050.47 and recommended
a base offense level of 6 under the advisory guidelines, a 2 level enhancement for the
amount of loss, and a 2 level reduction for acceptance of responsibility. The PSR
reported that Longoria had 54 criminal history points and a criminal history category
of VI and indicated that a departure might be warranted under U.S.S.G. § 4A1.3
because Longoria's criminal history category was "significantly higher than the typical
defendant in Category VI", which did not "reflect the seriousness of his past criminal
conduct or the likelihood he will commit other crimes."

        The initial sentencing hearing was continued because a few issues in the PSR
needed to be addressed following the first hearing. At both sentencing hearings, the
district court stated that based on a total offense level of 6 the advisory guideline
range was 12 to 18 months and that it would consider the 18 U.S.C. § 3553(a) factors
before determining a sentence. The government requested an upward departure based
on Longoria's criminal history and requested that the court consider a range of 24 to
30 months. It also cited United States v. Gonzales-Ortega, 346 F.3d 800, 803 (8th Cir.
2003), a case in which the district court had arrived at an upward departure by adding
1 offense level for every 3 criminal history points that exceeded 15. Longoria's sister
testified about his willingness to donate part of a kidney to her because of her liver
disease. Defense counsel and Longoria pointed to further mitigating circumstances
such as the fact that he has custody over his children, does not have a drug problem,
and made efforts at rehabilitation while incarcerated in Florida.

      The district court announced that it would depart upward because Longoria's
criminal history score "set[] a record" in its experience. The court applied a ratio of
1 offense level to every 3 criminal history points above 13 to determine a potential
sentencing range of 70 to 87 months. While it considered imposing a sentence of 84

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months, the district court sentenced Longoria to 48 months and restitution of
$4,295.40.

       Longoria argues that the district court erred by basing its departure solely on his
criminal history without considering the 18 U.S.C. §3553(a) factors and by imposing
an excessive and unreasonable sentence that was above the sentencing range in the
PSR and the government's recommendation. He relies on United States v. Castro-
Juarez, 425 F.3d 430 (7th Cir. 2005), and United States v. Shannon, 414 F.3d 921 (8th
Cir. 2005), to assert that an upward departure must be based on more than a recitation
of the defendant's criminal history. Finally, Longoria suggests that the court relied
excessively on pre Booker case law. See United States v. Booker, 543 U.S. 220
(2005).

       Under U.S.S.G. § 4A1.3(a) an upward departure may be warranted if "reliable
information indicates that the defendant's criminal history category substantially
under-represents the seriousness of the defendant's criminal history or the likelihood
that the defendant will commit other crimes". Section 4A1.3(a)(4)(B) provides that
for defendants in criminal history category VI, the court "should structure the
departure by moving incrementally down the sentencing table to the next higher
offense level in Criminal History Category VI until it finds a guideline range
appropriate to the case." Longoria had 41 more criminal history points than the 13
points which trigger category VI status. In departing the district court was guided by
§ 4A1.3(a)(4)(B) in increasing the offense level and chose to do so using a ratio of 3
points per level, which resulted in a potential advisory guideline sentence of 70 to 87
months. It then decided to impose a sentence significantly below that range.

       The district court did not abuse its discretion by departing upward. See, e.g.,
Shannon, 414 F.3d at 923 ("court may depart upward on the ground that even the
highest category seriously under-represents the seriousness of the defendant's criminal
history"). The district court also indicated that it was considering the 18 U.S.C. §

                                           -3-
3553(a) factors and it in fact imposed a sentence that was lower than the potential
advisory guideline range it had calculated. Such consistency with the guidelines is
"generally indicative of reasonableness", see Shannon at 924, and the court's decision
to depart based on underrepresentation of behavior or likelihood of future crime is
supported by the 18 U.S.C. § 3553(a) factors.

      Accordingly, we affirm the judgment of the district court.

                       ______________________________




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