     Case: 13-10692      Document: 00512663721         Page: 1    Date Filed: 06/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 13-10692                                   FILED
                                  Summary Calendar                             June 13, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LOVO SAMATRA GRAVES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-11-4


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Lovo Samatra Graves pleaded guilty to the production and use of a
counterfeit access device and was sentenced above the advisory guideline range
to 120 months of imprisonment and three years of supervised release. Graves
argues that the district court’s upward departure under U.S.S.G. § 4A1.3(a)(1)
based on his criminal history was an abuse of discretion, making his sentence
unreasonable, because 1) the facts resulting in his conviction are different and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-10692

show that he was less of a participant and less culpable as compared to his co-
defendants; 2) the elements of his offense of conviction are substantially
different from and do not constitute a lesser included offense of his co-
defendants’ conspiracy convictions; and 3) the criminal history used by the
court as the basis for the upward departure was based on different non-white
collar crimes which varied in type and time.
      In the context of a guidelines departure pursuant to § 4A1.3,
reasonableness review requires this court to evaluate both “the district court’s
decision to depart upwardly and the extent of that departure for abuse of
discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(internal quotation marks and citation omitted). “An upward departure by a
district court is not an abuse of discretion if the court’s reasons for departing
1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2) and 2) are justified
by the facts of the case.” 442 F.3d at 347 (internal quotation marks and
citations omitted).   However, “[a] district court abuses its discretion if it
departs on the basis of legally unacceptable reasons or if the degree of the
departure is unreasonable.” United States v. Simkanin, 420 F.3d 397, 416 n.21
(5th Cir. 2005) (internal quotation marks and citation omitted).
      The fact that Graves pleaded guilty to a different offense from his co-
defendants is irrelevant for sentencing purposes because his guideline range
was based upon his relevant conduct, which included the broader conspiracy
involving his co-defendants. Graves’s offense level was based upon all of the
facts reported in the presentence report concerning the entirety of the
conspiracy. If Graves believed he was less culpable, he could have argued for
a minor or minimal participant adjustment under § 3B1.2, but he did not.
Graves did receive a benefit from pleading guilty to a charge with a statutory
maximum of 120 months, as compared to the 180-month statutory maximum



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                                  No. 13-10692

of the conspiracy charge of his co-defendants. The district court indicated that
the statutory maximum limited its ability to sentence Graves even higher.
Graves cites no relevant authorities to support his argument that his supposed
lesser culpability somehow requires a within guidelines sentence despite his
criminal history. Graves has not demonstrated that the district court abused
its discretion by failing to account for his alleged lesser culpability in upwardly
departing based on his criminal history. See Zuniga-Peralta, 442 F.3d at 347.
      Regarding his criminal history, Graves argues that it did not support an
upward departure because of the “lapsed time” between his criminal history
and the present criminal offense, as well as the fact that his criminal history
was different in nature from the present offense, a white collar crime. Graves
was 33 years old at the time of sentencing, and his criminal history stretched
from age 18 to age 32. There was no “time lapse” in his criminal history, but a
steady engagement in criminal conduct over the course of 14 years, as noted
by the district court. Graves’s lenient treatment, also noted by the district
court, allowed him to continue to commit crimes.             The district court’s
consideration of his lenient treatment is a proper consideration and a valid
basis for departure. See United States v. Delgado-Nunez, 295 F.3d 494, 498
(5th Cir. 2002); see also United States v. Lee, 358 F.3d 315, 328-29 (5th Cir.
2004).
      The fact that Graves’s present offense was different in nature from his
previous offenses does not preclude the district court’s consideration of such
offenses in its determination that an upward departure was warranted under
§ 4A1.3. The listed factors in § 4A1.3(a)(2) are not exhaustive, and the district
court can consider serious dissimilar criminal conduct not resulting in a
conviction. See United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)
Graves’s prior convictions and criminal conduct involving burglary, assault



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with bodily injury, possession of controlled substances, and possession of a
prohibited weapon are serious crimes which pose an obvious danger to society
and justify the district court’s decision to depart. See Lee, 358 F.3d at 329.
      The district court did not abuse its discretion by upwardly departing
under § 4A1.3 for insufficient or unacceptable reasons. See Simkanin, 420 F.3d
at 416 n.21.
      AFFIRMED.




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