UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4104

TONY JUAN ESCANO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
W. Earl Britt, Senior District Judge.
(CR-97-11-BR)

Argued: December 3, 1999

Decided: January 18, 2000

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Anthony Martin, FEDERAL PUBLIC DEFEND-
ER'S OFFICE, Raleigh, North Carolina, for Appellant. Anne Marga-
ret Hayes, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee. ON BRIEF: William Arthur Webb, Federal Public
Defender, Edwin C. Walker, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Janice McKenzie Cole,
United States Attorney, Jane H. Jackson, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Tony Juan Escano (Escano) pled guilty to possession with the
intent to distribute marijuana. See 21 U.S.C.A. § 841(a)(1) (West
1999). The district court sentenced Escano to 137 months' imprison-
ment. Escano challenges his sentence, arguing that the district court
erred in making an upward departure based on the inadequacy of his
criminal history category. See U.S. Sentencing Guidelines Manual,
§ 4A1.3, p.s. (1997). We affirm.

I.

Escano's criminal history is extensive and spans more than twenty
years. The district court calculated Escano's offense level at twenty-
one, which included a three-level reduction for acceptance of respon-
sibility. See U.S.S.G. § 3E1.1.1 His prior convictions placed Escano
in criminal history category VI, the highest criminal history category.2
Escano's resulting sentencing range was seventy-seven to ninety-six
months' imprisonment. The presentence report suggested that the dis-
trict court consider an upward departure pursuant to U.S.S.G. § 4A1.3
on the grounds that Escano's criminal record was significantly more
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1 Pursuant to U.S.S.G. § 2D1.1, Escano's possession of 91 kilograms of
marijuana warrants a base offense level of 24.
2 Criminal history category VI applies to defendants having 13 or more
criminal history points. The following convictions were relied upon in
calculating Escano's 13 criminal history points: (1) a 1982 California
conviction for grand theft for which he was sentenced to one year in jail;
(2) a 1987 California conviction for receipt of stolen property for which
he was sentenced to 16 months in jail; (3) a 1992 California conviction
for taking a vehicle without the owner's consent for which he was sen-
tenced to 60 days in jail; and (4) a 1994 California conviction for posses-
sion of controlled substances for which he was sentenced to 16 months
in jail.

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serious than most defendants in the same category and that Escano's
likelihood of recidivism was extremely high. A number of Escano's
prior convictions had not been scored in the criminal history category
because they were too remote in time.3 See U.S.S.G. § 4A1.2(e).

The district court determined that Escano's criminal history cate-
gory seriously underrepresented his true criminal history and that an
upward departure was "absolutely necessary." J.A. 37. In imposing its
sentence, the district court stated:

          [T]he Court departs upward from Criminal History Category
          VI and finds that Criminal History Category VI significantly
          underrepresents the significance of the defendant's criminal
          history and the likelihood of recidivism.

          The defendant has an extensive history of theft related con-
          victions, a battery conviction originally charged as rape, and
          substance abuse convictions which, due to the age, were not
          reflected in the criminal history category.

          Given the serious nature, degree of victimization and overall
          longevity of the defendant's criminal history spanning some
          20 years, the Court finds that an upward departure is war-
          ranted.

J.A. 42. Accordingly, the district court adopted the recommendation
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3 Those uncounted prior convictions include the following: (1) a 1971
California conviction for petty theft; (2) a 1971 California conviction for
tampering; (3) a 1971 California conviction for taking a vehicle without
the owner's consent; (4) a 1974 California conviction for possession of
concentrated cannabis; (5) a 1975 California conviction for first degree
burglary for which he was sentenced to one year in jail; (6) a 1980 Cali-
fornia conviction for battery; (7) 1984 and 1985 California convictions
for receiving stolen property; (8) a 1986 California conviction of theft of
personal property; (9) a 1987 California conviction for being under the
influence of controlled substances; and (10) a 1987 California conviction
for being under the influence of controlled substances. The presentence
report also included four rape charges against Escano, each of which
were dismissed because the victims were too afraid to testify. J.A. 62-65.

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in the presentence report and departed upward from Escano's applica-
ble guideline range of seventy-seven to ninety-six months. Specifi-
cally, the district court departed upward four offense levels, resulting
in a sentencing range of 110-137 months. See U.S.S.G. § 4A1.3.
Escano objected to the upward departure, arguing that the prior con-
victions not counted in computing the criminal history did not meet
the requirements of U.S.S.G. § 4A1.3 in order to be considered by the
court as a basis for upward departure. Nevertheless, the district court
sentenced Escano to 137 months' imprisonment. Escano appeals.

II.

We review the district court's decision to impose a departure sen-
tence for abuse of discretion. See Koon v. United States, 518 U.S. 81,
98-99 (1996).

The Sentencing Guidelines expressly permit a court to depart
upward from the guidelines when a defendant's criminal history cate-
gory does not adequately reflect the seriousness of his past criminal
conduct or the likelihood that he will commit further crimes. See
U.S.S.G. § 4A1.3, p.s.; United States v. Cash, 983 F.2d 558, 560 (4th
Cir. 1992); see also United States v. Barber, 119 F.3d 276, 280-81
(4th Cir. 1997) (en banc) (explaining that a district court may depart
on the basis of an "encouraged factor" expressly identified by the
guidelines as a potential basis for departure). Pursuant to U.S.S.G.
§ 4A1.2(e), some prior convictions are not assigned criminal history
points because the convictions are too remote in time.4 However, in
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4 U.S.S.G. § 4A1.2(e) states:

          (1) Any prior sentence of imprisonment exceeding one year
          and one month that was imposed within fifteen years of the
          defendant's commencement of the instant offense is
          counted. Also count any prior sentence of imprisonment
          exceeding one year and one month, whenever imposed, that
          resulted in the defendant being incarcerated during any part
          of such fifteen-year period.

          (2) Any other prior sentence that was imposed within ten years
          of the defendant's commencement of the instant offense is
          counted.

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determining whether a defendant's criminal history is underrepre-
sented so as to justify an upward departure, a court may consider
those uncounted prior convictions if the prior convictions are evi-
dence of similar or serious dissimilar criminal conduct. See U.S.S.G.
§ 4A1.2, comment. (n.8). The sentencing court should not base its
determination merely on the number of prior offenses committed by
a defendant, but should also consider that their nature often better
reflects the seriousness of the defendant's criminal record. See
U.S.S.G. § 4A1.3, p.s.; Cash, 983 F.2d at 560-61.

In determining whether convictions for serious dissimilar conduct
justify a departure, "[t]he court must determine whether the circum-
stance identified and found to exist in the particular case is of suffi-
cient importance and magnitude." United States v. Rusher, 966 F.2d
868, 882 (4th Cir. 1992). The district court properly considered sev-
eral of Escano's serious dissimilar criminal convictions in justifying
the upward departure, the most significant of which were the follow-
ing: (1) a 1975 conviction of first degree burglary for which Escano
was sentenced to one year in jail and five years probation;5 and (2)
a 1980 conviction of battery for which Escano was sentenced to thirty
days in jail and thirty-six months' probation.6 The offense conduct,
the sentences imposed, and the elements of these crimes establish that
they are serious crimes and evidence Escano's propensity to commit
violence.

The district court also properly considered several similar prior
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          (3) Any prior sentence not within the time periods specified
          above is not counted.

           (4) The applicable time period for certain sentences resulting
           from offenses committed prior to age eighteen is governed
           by §4A1.2(d)(2).
5 Escano was originally charged with burglary with intent to commit
rape, but the rape charge was dropped. According to the presentencing
report, Escano broke into a residence and struck the female victim in the
face before the victim escaped.

6 Escano was originally charged with rape, but pled guilty to battery.
His probation was revoked, and he served an additional 120 days in jail.

                    5
convictions in deciding to depart upward: (1) a 1974 conviction for
possession of cannabis for which Escano was sentenced to forty-five
days in jail with thirty days suspended and three years probation; and
(2) two 1987 convictions for being under the influence of controlled
substances for which Escano was sentenced to ninety days in jail and
thirty-six months probation for each. Though Escano argues that these
convictions are not similar to the instant offense because they
involved personal use of controlled substances rather than distribu-
tion, we disagree. Both the 1974 offense and the present offense
involve his possession of marijuana, a controlled substance. More-
over, Escano's repeated convictions for drug-related offenses evi-
dence his likelihood of recidivism, and the district court was within
its discretion in considering such conduct.

Once the district court concludes that the defendant's criminal his-
tory is sufficient to justify an upward departure from criminal history
category VI, the court has several options. See United States v.
Harrison, 58 F.3d 115, 118 (4th Cir. 1995). One of those options is
to "structure the departure by moving incrementally down the sen-
tencing table to the next higher offense level in Criminal History Cat-
egory VI until it finds a guideline range appropriate to the case."
U.S.S.G. § 4A1.3, p.s.; see Cash, 983 F.2d at 561; see Harrison, 58
F.3d at 118. Upon determining that the extent and nature of Escano's
criminal history warranted an upward departure, the district court fol-
lowed these guidelines precisely, moving down the sentencing table
to find the appropriate guideline range, which the court found to be
110 to 137 months. The court expressly found that the succeeding
levels, twenty-two, twenty-three, and twenty-four,"inadequately
represent[ed] the seriousness of the defendant's conduct." J.A. 43.

In concluding that criminal history category VI did not adequately
reflect the seriousness of Escano's criminal record and that his likeli-
hood of recidivism was high, the district court did not abuse its dis-
cretion in concluding that Escano's similar prior convictions and
dissimilar serious criminal conduct justified an upward departure
from the guideline range. See U.S.S.G. § 4A1.3. For the foregoing
reasons, the order of the district court is affirmed.

AFFIRMED

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