UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4225

GREGORY LYNN WIDENER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-97-30-A)

Submitted: January 26, 1999

Decided: February 17, 1999

Before LUTTIG and TRAXLER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Barry Lynn Proctor, Abingdon, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Ruth E. Plagenhoef, First Assis-
tant United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Gregory Lynn Widener pled guilty to escape, see 18 U.S.C. § 751
(1994), and contempt, see 18 U.S.C. § 401 (1994), after he escaped
from a county jail where he was being detained pending a hearing on
revocation of his supervised release. Departing above the guideline
range of 33-41 months, the district court sentenced Widener to a term
of 96 months imprisonment. See U.S. Sentencing Guidelines Manual
§ 4A1.3, p.s. (1997). Widener appeals the fact and the extent of the
departure. We affirm.

With forty-two criminal history points, Widener was in criminal
history category VI. Because he had demonstrated a lifelong pattern
of criminal activity, chiefly burglary and theft, the probation officer
recommended that an upward departure might be appropriate. At sen-
tencing, arguing against a departure, defense counsel pointed out that
Widener had been given a thirty-year sentence in state court for his
most recent burglary. However, the district court determined that,
because Widener's previous sentences had not deterred him from
committing new crimes when he was released, a departure was war-
ranted. The district court structured the departure by beginning at the
offense level of thirteen and moving to a higher offense level for each
additional three criminal history points Widener had accumulated in
category VI until the court reached offense level twenty-one. See
United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992) (district
court may depart above category VI by moving to higher offense
levels). The court determined that offense level twenty-one, together
with criminal history category VI, was adequate to reflect the serious-
ness of Widener's past criminal conduct. The resulting guideline
range was 77-96 months. The court imposed a sentence of 96 months.

Widener suggests that a sentence within the guideline range would
have been sufficient to protect society because of the long state sen-
tence he was serving. We review a departure decision for abuse of
discretion. See Koon v. United States, 518 U.S. 81 (1996). Under
USSG § 4A1.3, departure is encouraged when the criminal history
category under-represents the defendant's actual criminal history.
Given the excess criminal history points Widener had accumulated,

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we cannot say that the district court abused its discretion in determin-
ing that it should depart above the guideline range.

Widener also contends that the district court abused its discretion
in departing to the extent that it did, and failed to explain why a lesser
departure would not have been adequate. When a sentencing court
departs pursuant to USSG § 4A1.3, the court must address each sen-
tencing category--or, in this case, each offense level--and move to
a higher one only after finding that each category is inadequate to
reflect the seriousness of the defendant's record. See United States v.
Rusher, 966 F.2d 868, 884 (4th Cir. 1992). Here, the district court
carefully addressed each successively higher offense level and
decided that it was not adequate. The court moved to increasingly
higher offense levels until it had accounted for twenty-four of the
twenty-nine additional criminal history points Widener had accumu-
lated. The court thus complied with the mandate of Rusher.

Accordingly, we affirm the sentence. The government's motion to
decide the case on the briefs is granted. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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