UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4268

VERNON RAY ROBERTSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-96-170)

Submitted: April 7, 1998

Decided: April 23, 1998

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Scott P. Mebane, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Beginning in approximately 1991 Vernon Ray Robertson began
writing checks on closed accounts to open other bank accounts and
secure goods and services. He also would return merchandise and
flight coupons for cash. Based upon these activities, Robertson was
arrested and held without bond from November 4, 1993, to February
21, 1994; on February 22 he was released into the custody of his
mother conditioned upon his promise not to commit any federal, state,
or local offense. On April 20, 1994, Robertson pled guilty to one
count of mail fraud and received a fifty-seven month sentence com-
mencing on June 1, 1994 ("first" or "1994" sentence) based upon his
conduct from 1991 to his November 1993 arrest. During his release
period from February 22 to June 1, 1994, however, Robertson again
set about defrauding banks through the mail. On November 15, 1996,
he again pled guilty to one count of mail fraud and received a forty-
seven month sentence ("second" or "1996" sentence). Robertson
appeals his 1996 sentence alleging that the district court erred: (1) by
treating the conduct underlying each conviction as"unrelated" under
the U. S. Sentencing Guidelines Manual ("USSG") § 1B1.3 (1995);
(2) by departing upward under USSG § 4A1.3, p.s., and in the manner
it departed; and (3) because it mistakenly believed it had no authority
to order that his second sentence run concurrently with the first.

On appeal, we review a district judge's application of the Sentenc-
ing Guidelines under a clearly erroneous standard when the issue
depends upon a factual determination. See United States v. Jones, 31
F.3d 1304, 1315 (4th Cir. 1994). When the issue requires a legal inter-
pretation of the Guidelines, our review is de novo. Id. Mixed ques-
tions of law and fact are reviewed on a sliding scale, depending upon
whether the issues are essentially factual or legal. Id.

Robertson argues that the conduct underlying his 1994 sentence
and his 1996 sentence should be considered as a continuous offense
for purposes of sentencing. He argues, therefore, that the sentencing
court should have considered his fraudulent conduct while on release
merely as part of his relevant conduct for his first sentence under
USSG § 1B1.3(a)(2), thus making him eligible for a concurrent sen-

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tence under USSG § 5G1.3(b). This argument fails because applica-
tion note 8 to § 1B1.3 makes it clear that offenses interrupted by an
intervening sentence are to be treated separately for purposes of rele-
vant conduct under § 1B1.3(2). All but one of the transactions under-
lying Robertson's 1996 conviction and sentence took place after he
received his first sentence on April 20, 1994. 1

Next, Robertson alleges that the sentencing court erred in deciding
to depart and in its manner of departing upward. The parties agree
that we review these issues for an abuse of discretion. See United
States v. Koon, 518 U.S. 81, ___, 116 S. Ct. 2035, 2042-43 (1996).

Robertson's offense level of thirteen with a criminal history cate-
gory of VI resulted in a sentencing range of thirty-three to forty-one
months. Robinson had seventeen criminal history points. The court
upwardly departed from this range primarily because it found that
Robertson's "total point count for [his] sentencing background does
not adequately reflect the seriousness and the past continuation of the
same kinds of conduct."2 See USSG § 4A1.3. Further, the court noted
that Robertson had committed the instant offense while on release
awaiting trial, had a string of seventeen convictions dating back to at
least 1972 for similar fraudulent conduct, and that he was likely to
continue pursuing this conduct upon release from incarceration. The
court then considered the next range of thirty-seven to forty-six
months and also found it insufficient, for the same reasons. Accord-
ingly, it moved to the next higher range, of forty-one to fifty-one
months, and sentenced him to forty-seven months of incarceration.

We do not find that the district court abused its discretion by decid-
ing to depart. See Koon, 518 U.S. at #6D 6D6D#, 116 S. Ct. at 2042-43. Out-
dated sentences may be used in determining the adequacy of a
defendant's criminal history, see United States v. Rusher, 966 F.2d
868, 882 (4th Cir. 1992), and a sentencing court may depart from an
applicable guideline range if reliable information indicates a defen-
dant's criminal history category does not adequately reflect the seri-
_________________________________________________________________
1 (See Joint Appendix ("J.A.") at 125).
2 (See J.A. at 87). Because Robertson's recorded criminal background
of fraudulent activities went back to 1971, seven of his convictions
yielded no points.

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ousness of his prior crimes. See USSG § 4A1.3. Moreover, at the
sentencing hearing, the district court clearly provided its reasons for
choosing to depart upward, see 18 U.S.C.A.§ 3553(c)(2) (West Supp.
1998), and reasons for rejecting each next higher range as inadequate,
as required. See Rusher, 966 F.2d at 882-84. See also USSG § 4A1.3;
United States v. Cash, 983 F.2d 558, 559-62 (4th Cir. 1992) (uphold-
ing district court's finding that criminal history category of VI did not
adequately represent the seriousness of defendant's seventeen year
record of past criminal conduct and therefore a departure was
allowed; upholding court's departure by moving to successively
higher offense levels until sentencing range adequately reflected seri-
ousness of criminal history).

Finally, Robertson argues that, because the sentencing court mis-
takenly believed that it did not have authority to grant his request to
be sentenced concurrently with his 1994 sentence, we should remand
so that the court may be given an opportunity to consider his
requested relief. See United States v. Rogers , 897 F.2d 134, 138 (4th
Cir. 1990). This claim fails, however, because the court at the sen-
tencing hearing made an alternative finding that, even if it had author-
ity to sentence Robertson concurrently, it would not.

Accordingly, we affirm the sentence of the district court. We dis-
pense 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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