                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-4299
MICHAEL JOHN PAPAGEORGE,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
       for the Northern District of West Virginia, at Elkins.
            Robert Earl Maxwell, Senior District Judge.
                           (CR-00-14)

                  Submitted: September 28, 2001

                      Decided: October 17, 2001

   Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.



Dismissed in part and affirmed in part by unpublished per curiam
opinion.


                             COUNSEL

Timothy M. Sirk, Keyser, West Virginia, for Appellant. Patrick M.
Flatley, United States Attorney, Sherry L. Muncy, Assistant United
States Attorney, Elkins, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                    UNITED STATES v. PAPAGEORGE
                              OPINION

PER CURIAM:

   Michael John Papageorge pled guilty to bank robbery, in violation
of 18 U.S.C. § 2113(a) (1994). On appeal, Papageorge argues that the
district court erred in failing to depart downward based upon his post-
traumatic stress disorder (PTSD), and that the court erred in departing
upward based upon an inadequate criminal history category. We
affirm in part and dismiss in part.

   A district court’s decision not to depart downward may be
reviewed when it is based on a mistaken belief that it lacks authority
to depart. United States v. Edwards, 188 F.3d 230, 238 (4th Cir.
1999), cert. denied, 528 U.S. 1130 (2000). However, no review is
available when the district court recognizes its authority to depart but
decides that the facts and circumstances do not warrant a departure.
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). Here, the dis-
trict court stated that it had "carefully reviewed the entire record in
this criminal action and [was] unable to find that a downward depar-
ture on either of the two bases sought by Defendant, namely dimin-
ished capacity due to posttraumatic stress disorder or extraordinary
family ties or circumstances, [was] appropriate." (J.A. 26). Because
the district court knew that it had the authority to depart and declined
to do so, we may not review the decision. We therefore dismiss this
portion of the appeal.

   At Defendant’s sentencing, the district court concluded that Crimi-
nal History Category V under-represented his past criminal conduct
and the likelihood that he would commit future crimes. The district
court departed upward from a total offense level of 19 to a total
offense level of 21, sentencing Defendant to 87 months imprison-
ment.

   The district court’s decision to depart is reviewed for abuse of dis-
cretion. Koon v. United States, 518 U.S. 81, 98-99 (1996). A district
court may depart on the basis of an encouraged factor if the applicable
guideline does not already take it into account. Brock, 108 F.3d at 34.
The sentencing guidelines expressly encourage departure when a
defendant’s criminal history category does not adequately reflect the
                     UNITED STATES v. PAPAGEORGE                      3
seriousness of his past criminal conduct or the likelihood that he will
commit further crimes. USSG § 4A1.3, p.s. (2000); United States v.
Cash, 983 F.2d 558, 560 (4th Cir. 1992). In deciding whether to
depart, the court should not base its decision only on the number of
prior offenses, but should consider that their nature is often a better
indication of the seriousness of the defendant’s criminal record.
USSG § 4A.1.3; Cash, 983 F.2d at 560-61.

   Papageorge argues that his prior record was not extraordinary and
the convictions resulted in minimal sentences, that the prior sentences
not used in computing the criminal history were driving and traffic
offenses, and assault, that three convictions with sentences exceeding
one year is not atypical for criminal history category V, and that there
is no similar prior conduct that has not resulted in a criminal convic-
tion.

   We conclude that the district court did not abuse its discretion in
deciding that a departure above category V was warranted. First, the
fact that Papageorge 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. Next, the district court
reviewed the offense conduct involved in the 1990 grand larceny con-
viction and found that Papageorge’s actual conduct related to the
grand larceny included burglary of a dwelling, and that if the charge
had not been nol prossed, Papageorge would have qualified as a
career offender under USSG § 4B1.1. Finally, the district court’s find-
ings did not focus primarily on the number of Papageorge’s prior con-
victions or even on the number of criminal history points he earned,
but on his continuous criminal conduct throughout the past twenty
years and the high likelihood that he would continue such conduct in
the future.

   Having determined to depart, the court properly structured the
departure by moving down the sentencing table to successively higher
offense levels to find the appropriate guideline range. 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. Cash, 983 F.2d at 562
n.7 (approving procedure described in United States v. Rusher, 966
4                    UNITED STATES v. PAPAGEORGE
F.2d 868, 884 (4th Cir. 1992)). We find no error in the district court’s
decision to depart upward.

   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                       DISMISSED IN PART; AFFIRMED IN PART
