                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 03-4605
JEFFREY DALE CLEMENT,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
             N. Carlton Tilley, Jr., Chief District Judge.
                             (CR-03-11)

                      Submitted: October 29, 2003

                      Decided: November 14, 2003

Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Kimberly Schell, Third-Year Law Student, Greensboro, North Caro-
lina, for Appellee.
2                    UNITED STATES v. CLEMENT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Jeffrey Dale Clement, a convicted felon, pled guilty to possession
of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000)
(Count One), possession of cocaine with intent to distribute, 21
U.S.C. § 841 (2000) (Count Two), and possession of an unregistered
firearm, 26 U.S.C. § 5861(d) (2000) (Count Four). In sentencing
Clement, the district court departed upward under U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (2002), and sentenced him to 118
months imprisonment. Clement contests the departure. We affirm.

   The probation officer placed Clement in criminal history category
IV because he had eight criminal history points, but suggested that an
upward departure might be warranted under USSG § 4A1.3 because
Clement had received only three criminal history points for a number
of drug-related felony convictions that were consolidated for sentenc-
ing and thus were treated as related cases. See USSG § 4A1.2(a)(2),
comment. (n.3). Five such felonies, all committed on October 30,
1998, were listed in Paragraph 32 of the presentence report. Three
additional felony offenses that occurred on July 29, 1999, were con-
solidated for sentencing with the five described felonies, and were
listed in Paragraph 34.

   At the sentencing hearing, the district court misread Paragraph 32
as describing two sets of convictions that were committed on different
dates and were consolidated for sentencing. The court decided that an
upward departure was justified based on the convictions listed in
Paragraph 32. The district court departed upward by one level, plac-
ing Clement in criminal history category V and increasing his guide-
line range from 84-105 months to 100-120 months. The court then
noted that it could have departed further by adding another three
hypothetical criminal history points for the offenses Clement commit-
ted on July 29, 1999.
                       UNITED STATES v. CLEMENT                          3
   Generally, a sentencing court may depart from the guideline range
only if the court finds an aggravating or mitigating factor of a kind,
or to a degree, not adequately considered by the Sentencing Commis-
sion. 18 U.S.C. § 3553 (2000); Koon v. United States, 518 U.S. 81,
98 (1996). The Prosecutorial Remedies and Tools Against the Exploi-
tation of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No.
108-21, 117 Stat. 650, now requires a reviewing court to conduct a
de novo review of whether the district court’s departure decision was
based on proper factors. The appeals court must determine whether
the departure was based on a factor that (1) does not advance the
objectives set forth in 18 U.S.C. § 3553(a)(2), or (2) is not authorized
by § 3553(b), or (3) is not justified by the facts of the case. Id.
§ 401(d), 117 Stat. at 670; 18 U.S.C. § 3742(e)(3)(B)(i)-(iii) (2000).
The PROTECT Act also requires the district court to provide its rea-
sons for departure with specificity in the written judgment. See PRO-
TECT Act, § 401(c)(1), 117 Stat. at 669; 18 U.S.C. § 3553(c)(2)
(2000). In this case, the district court provided a brief statement of its
reasons in the written judgment. (JA-I at 39).

    Clement contends that the district court’s departure was not justi-
fied by the facts of the case because the court failed to understand that
all the offenses listed in Paragraph 32 occurred on October 30, 1998.
He argues that he did not receive an undue benefit from the guide-
line’s treatment of these related offenses. However, the district court
stated that it would have been appropriate to add another three hypo-
thetical criminal history points for the July 29, 1999, offenses. Thus,
it is clear that, had the court read Paragraph 32 correctly, it would still
have departed upward by one level.

   An upward departure pursuant to § 4A1.3 is encouraged when the
district court finds that the criminal history category under-represents
the defendant’s past criminal conduct and likelihood of recidivism.
United States v. Bellamy, 264 F.3d 448, 456 (4th Cir. 2001), cert.
denied, 534 U.S. 1143 (2002). Therefore, we conclude the district
court did not err in choosing to upwardly depart.

   We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
4                    UNITED STATES v. CLEMENT
ment would not aid the decisional process.



                                                AFFIRMED
