UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4973

YAKUBU MOBUTU ROSS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-58)

Submitted: March 28, 2000

Decided: August 29, 2000

Before WILLIAMS and MICHAEL, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Bradley Powell Butterworth, BUTTERWORTH & WAYMACK,
Hopewell, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, John S. Davis, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Yakubu Mobutu Ross appeals his convictions for one count of pos-
session of a firearm by a convicted felon and one count of possession
of ammunition by a convicted felon. See 18 U.S.C. § 922(g)(1)
(1994). He was sentenced to eighty-seven months imprisonment on
each count, to be served concurrently; the sentences were to be served
consecutive to any other terms of imprisonment faced by Ross. Ross
timely appealed. He raises three claims: (1) the Government made
unduly prejudicial comments during its closing argument; (2) the dis-
trict court erroneously granted an upward departure in his criminal
history category from category IV to category VI; and (3) the district
court erred in declining to impose all or part of his federal sentence
to run concurrently with his state sentence. We affirm in part, vacate
in part, and remand for resentencing.

I.

Ross first contends that the district court erred in permitting the
Government to argue that he had lied during his testimony. In January
1997, police officers arrested Ross for carrying a firearm. During a
suppression hearing, the prosecutor asked Ross,"prior to your contact
with the police officers, what were you doing?" (J.A. 10). Ross stated
that he had been walking up Enslow Avenue to the corner of Front
Street when several police cars arrived on the scene. According to
Ross, the officers grabbed him, searched him without his consent,
placed him in a police car, and searched a jacket he had been carrying
over his arm. Ross testified that the officers discovered the firearm in
a pocket of the jacket after Ross was placed in the car.

The officers testified that Ross was wearing the jacket containing
the firearm. Further, the officers said that Ross consented to a search
of his person, and that the firearm was discovered during their subse-

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quent pat-down search. Further, the officers testified that several
papers bearing Ross' name were found in the jacket, and that Ross
was still wearing the jacket when he was photographed at the Rich-
mond City Jail after his arrest.

The district court credited the officers' testimony over Ross' and
denied the motion to suppress.

At trial, Ross testified and asserted that the officers were lying as
to several key facts in the case. During cross-examination, the prose-
cutor asked Ross, "[p]rior to your contact[with the police officers],
what were you doing that day?" (J.A. 96). Ross stated that prior to
walking down Enslow Avenue, he had been playing basketball. After
the game, a man named Dave gave Ross a ride to the intersection of
Enslow Avenue and Front Street. According to Ross, as he exited the
car, Dave gave him a jacket to hold while Dave parked the car around
the corner. When asked why he had not mentioned receiving the
jacket from Dave at the suppression hearing, Ross stated that he had
"just [been] getting to the point," but did not feel that information was
relevant to the issues at the suppression hearing. (J.A. 112, 116). With
regard to the papers bearing his name, Ross stated that they were in
the pocket of his jeans, not in the jacket. Finally, Ross testified that
the officers instructed him to put the jacket on at the Richmond City
Jail prior to being photographed.

During closing argument, the prosecutor pointed out the differ-
ences in Ross' testimony at the suppression hearing and at trial. The
prosecutor then stated:

          The defendant has maneuvered here. The defendant has tes-
          tified in a way that he hopes fits all the evidence. But he
          missed that one. He is caught red-faced in a lie , the same
          kind of lie he accuses [the officers] of telling a dozen times
          in this case.

(J.A. 137) (emphasis added).

Ross claims that the statement that he was "caught red-faced in a
lie" was improper. Because his counsel did not object to this state-

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ment at trial, we review for plain error. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732-37 (1993).

It is "highly improper for the government to refer to a defense wit-
ness as a liar." See United States v. Moore , 11 F.3d 475, 481 (4th Cir.
1993). The statement here was similarly improper. Nevertheless, we
conclude that the statement does not warrant reversal. See Olano, 507
U.S. at 732 (holding that reversal is only warranted when there is an
error that is plain, the error affects a party's substantial rights, and the
error "seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings"). First, the statement was an isolated incident.
Second, because Ross' testimony clearly contradicted that of the offi-
cers in several key respects, the jury must have realized that someone
was not testifying truthfully. Finally, the evidence against Ross was
overwhelming. Accordingly, we conclude that Ross' substantial rights
were not violated, and relief is not warranted on this claim. See
Moore, 11 F.3d at 481.

II.

Ross next contends that the district court erroneously increased his
criminal history category from category IV to category VI on the
Government's motion. At sentencing, the district court stated that
Ross' criminal record supported a finding that he was "a recidivist of
a dangerous nature," and that category IV was not"adequate to reflect
his criminal conduct." (J.A. at 182-83). The court specifically based
the increase to category VI on Ross' "background" and "adult record."
(J.A. 183).

The district court may increase a defendant's criminal history cate-
gory if it finds that the defendant's past criminal conduct is not ade-
quately accounted for in the guidelines criminal history calculation,
or to take into account the defendant's likelihood of recidivism. See
USSG § 4A1.3 (1995). However, the court must"refer first to the
next higher category and . . . move on to a still higher category only
upon a finding that the next higher category fails adequately to reflect
the seriousness of the defendant's record." United States v. Rusher,
966 F.2d 868, 884 (4th Cir. 1992). The court must provide specific
reasons for departing in language relating to the guidelines. See id. at
883.

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As the Government concedes, the district court did not expressly
consider whether category V would be inadequate to take into account
Ross' criminal history category before departing to category VI.
Accordingly, we remand for the district court to reconsider Ross'
criminal history category in accordance with Rusher and USSG
§ 4A1.3.

III.

Finally, Ross contends that the district court misapplied USSG
§ 5G1.3(c) (1995) in ordering that Ross' sentence be served concur-
rently with the sentence he was then serving for a 1996 state convic-
tion. Ross contends that the district court erred in failing to ensure
that the sentence resulted in a "reasonable incremental punishment"
by creating a hypothetical combined guidelines range considering
both the undischarged state term of imprisonment and the current
offenses. USSG § 5G1.3, comment. (n.3) (1994). See United States v.
Hill, 59 F.3d 500, 502-03 (4th Cir. 1995). Because the "reasonable
incremental punishment" requirement did not apply to this offense,
which is governed by the 1995 version of the guidelines, this claim
is meritless. See USSG Amendment 535; United States v. Mosley, 200
F.3d 218, 223-24 (4th Cir. 1999).

IV.

We vacate Ross' sentence and remand for the district court to con-
duct the requisite inquiry for determining Ross' criminal history cate-
gory. In all other respects, we affirm. We grant the motion to submit
the case on the briefs without oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not significantly aid the decisional process.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED

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