     Case: 09-30518     Document: 00511037790          Page: 1    Date Filed: 03/01/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            March 1, 2010
                                     No. 09-30518
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BOBBY TUGGLE, JR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-50-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Bobby Tuggle, Jr., appeals the 78-month sentence imposed by the district
court following his guilty-plea conviction for possession of a firearm by a
convicted felon. Tuggle argues that the district court erred both procedurally
and substantively by upwardly departing based on the underrepresentation of
his criminal history category.
        Because Tuggle argues for the first time on appeal that the district court
failed to provide sufficient oral reasons for the departure and that it provided no

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30518    Document: 00511037790 Page: 2        Date Filed: 03/01/2010
                                 No. 09-30518

written reasons supporting the departure, we review these arguments for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009); United States v. Peltier, 505 F.3d 389, 394
(5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). At sentencing, the district
court stated that it had considered the factors in 18 U.S.C. § 3553(a) and that an
upward departure was warranted based on Tuggle’s extensive criminal history.
The district court cited his prior offenses, the offenses for which he had not
received any criminal history points, and his pattern of recidivism. Because
Tuggle had a criminal history category of VI, the district court properly
considered what incremental increase in his offense level would correspond to
an appropriate sentencing range. The district court’s written statement of
reasons indicated that the court departed under U.S. Sentencing Guidelines
§ 4A1.3 (2008), due to the inadequacy of Tuggle’s criminal history category and
that a two-level increase in his offense level was warranted based on the
seriousness of his criminal history and the likelihood that he would commit
additional crimes. We find no procedural error, plain or otherwise, with respect
to the district court’s upward departure. See United States v. Zuniga-Peralta,
442 F.3d 345, 347 (5th Cir. 2006).
      Tuggle also argues that the sentence imposed is disproportionate to his
offense because there is no evidence to suggest that he was engaged in any
wrong doing, other than carrying the firearm, when he was arrested and because
the underlying felony used to support the felon in possession charge was not a
violent felony, but rather was a drug offense. Tuggle’s arguments are misplaced
because they address only his current offense rather than his history and
characteristics or the need to protect the public, which were cited by the district
court in support of its departure. See § 3553(a)(1) & (2). Although the current
offense did not involve violence, Tuggle’s convictions for possession of a firearm
by a convicted felon and for drug offenses are the types of convictions that “pose
an obvious danger to society.” See United States v. Lee, 358 F.3d 315, 329 (5th

                                        2
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                                 No. 09-30518

Cir. 2004). His convictions for possessing a stolen firearm and aiding escape
from an armed robbery indicate a risk of violence. Additionally, the district
court was free to consider the two prior convictions for which Tuggle received no
criminal history points, see § 4A1.3(a)(2)(A), and the record clearly supports the
court’s finding that Tuggle had made no attempt to change his behavior despite
his prior convictions. Accordingly, the district court did not abuse its discretion
by imposing a two-level upward departure based on the underrepresentation of
Tuggle’s criminal history category. See Zuniga-Peralta, 442 F.3d at 347; United
States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).
      AFFIRMED.




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