                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 01-11117



UNITED STATES OF AMERICA
          Plaintiff - Appellee

      v.

ROBERT LAKE, also known as Robert
Dashaun Lake
          Defendant - Appellant

                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 4:01-CR-45-1-A
                        - - - - - - - - - -
                           July 12, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

      Robert Lake pleaded guilty to conspiracy to fraudulently use

identities in violation of 18 U.S.C. §§ 371 and 1028.         He appeals

the   district    court’s   four-level   upward   departure   from   the

sentencing guideline’s range. Lake asserts that the district court

failed to comply with FED. R. CRIM. P. 32 because it did not provide

notice that it was going to depart upward based on its finding that

the loss calculation did not fully take into account the loss of

the victims because there was no loss information from many of


      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 01-11117
                                  -2-

them.   He also contends that the district court did not provide

notice that it was going to consider his role in the offense as a

basis for an upward departure. Lake argues that the district court

erred in departing upward on both of these grounds and also on the

ground that   his   prior   convictions   had   not   deterred   him   from

committing the present offense.

     Lake’s assertions that the district court: 1) failed to

provide reasonable notice pursuant to FED. R. CRIM. P. 32 of its

intention to depart upward from the sentencing guidelines based

upon Lake’s role in the offense; and 2) improperly relied upon

Lake’s role in the offense as a basis for an upward departure from

the sentencing guidelines are without merit.          The district court

did not depart upward on the basis of Lake’s role in the offense.

The district court articulated its reasons for sentencing Lake and

dismissed him from the sentencing hearing. Before commenting about

one of Lake’s co-defendant’s role in the offense, the district

court stated; “[F]rom this point forward, of course, the hearing is

not to affect . . . Mr. Lake.” R. 3, 74-75.       The district court’s

statement to a co-defendant that the co-defendant would not receive

a four-level upward departure but would only receive a three-level

upward departure does not imply that Lake’s sentence was based on

his role in the offense.     Accordingly, notice was not required.

     Lake’s contention that the district court failed to provide

proper notice of its intention to depart upward based upon its

finding that the loss calculation did not fully account for the
                                     No. 01-11117
                                          -3-

loss of the victims fails.                 Based upon the Presentence Report’s

(“PSR”) statement that the victim loss information was not complete

and the court’s order requesting additional information regarding

monetary and non-monetary losses and informing the parties that it

was considering whether to depart upward based upon U.S.S.G.

§   2F1.1   &    §     5K2.0   due   to    the    loss   determination      not   fully

reflecting       the    seriousness        of    the   offense   conduct,    Lake   was

adequately       notified      of    the    possible      grounds    for    an    upward

departure.        See Burns v. United States, 501 U.S. 129, 138-39

(1991); United States v. Milton, 147 F.3d 414, 420-21 (1998).

      Given the uncontested statement in the PSR that the victim

loss information was incomplete, as well as the limited number of

responses       regarding      non-monetary        losses,   the    district     court’s

determination that the amount of loss as calculated under U.S.S.G.

§ 2F1.1 did not adequately reflect the loss of the victims was not

unreasonable.          Therefore, the district court did not abuse its

discretion in considering this factor in departing upward from the

sentencing guidelines.              See United States v. Dadi, 235 F.3d 945,

953 (5th Cir. 2000), cert. denied, 532 U.S. 1072 (2001); Milton,

147 F.3d at 421.

      Departures regarding a defendant’s recidivism are generally

addressed pursuant to U.S.S.G. § 4A1.3, which relates to the

adequacy of a defendant’s criminal history category. This does not

preclude, however, an upward departure based upon recidivism under

U.S.S.G. § 5K2.0.           United States v. McDowell, 109 F.3d 214, 218
                            No. 01-11117
                                 -4-

(5th Cir. 1997).   Even assuming, arguendo, that the district court

improperly   considered   Lake’s   past    criminal   conduct   and   the

likelihood of his committing other crimes in departing upward under

U.S.S.G. § 5K2.0, we find that any such error was harmless.           The

primary basis for the district court’s departure related to the

non-monetary losses of the victims, and the court clearly indicated

its intention to impose at least the 41-month sentence that Lake

received. See Williams v. United States, 503 U.S. 193, 203 (1992).

Therefore, Lake’s sentence is AFFIRMED.
