UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5697

HOWARD HARDY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-156-A)

Submitted: August 30, 1996

Decided: September 23, 1996

Before HALL, WILKINS, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Drewry B. Hutcheson, Jr., Duncan Packer, Alexandria, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Irvin McCreary
Allen, Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Howard Hardy appeals his sentence following his plea of guilty to
prisoner possession of heroin. See 18 U.S.C.§ 13 (1988) assimilating
Va. Code Ann. § 53.1-203(5) (Michie 1994). For the reasons that fol-
low, we vacate Hardy's sentence and remand for resentencing.

Shortly before sentencing, the district court filed a "Notice of Intent
to Depart Upward," remarking that Hardy's criminal history category
inadequately reflected the seriousness of his past criminal conduct
and the likelihood that he would commit other crimes. The district
court noted that Hardy's serious juvenile offenses resulted in no crim-
inal history points because Hardy committed them more than five
years prior to the instant offense. See United States Sentencing Com-
mission, Guidelines Manual § 4A1.2(d) (Nov. 1, 1994). Based on
those adjudications and a psychiatric evaluation which concluded that
Hardy fit the profile of a repeat sexual offender, the district court
announced its intention to depart from the calculated criminal history
category IV to criminal history category VI. Hardy's counsel objected
generally to the intention to depart upward.

At sentencing, Hardy's counsel again argued in general terms that
the Sentencing Commission had adequately considered juvenile adju-
dications and that the district court should not depart on that ground.
Further, counsel explained that Hardy was "intelligent, engaging, and
serious" and requested leniency for his client. The district court
imposed its sentence and departed upward sentencing Hardy to thirty-
three months imprisonment based on a criminal history category of VI
and an offense level of eleven. The district court did not make any
mention of the propriety of a sentence under criminal history category
V. Hardy filed a timely appeal.

On appeal, Hardy contends that his sentence should be vacated
because in departing upward based on the inadequacy of his criminal
history category, the district court did not comply with the dictates of
United States v. Rusher, 966 F.2d 868, 884 (4th Cir.), cert. denied,
506 U.S. 926 (1992). When a district court chooses to depart upward
based on an inadequacy of the criminal history, the sentencing court

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should depart "first to the next higher category and . . . move on to
a still higher category only upon a finding that the next higher cate-
gory fails adequately to reflect the seriousness of the defendant's
record." Id. While this holding has been described as dicta,* this
Court concluded that Rusher "identified the proper approach to be
taken." Cash, 983 F.2d at 561 n.7. Although the sentencing court is
generally afforded broad discretion in its decision to depart upward
from the sentencing guidelines, see United States v. Summers, 893
F.2d 63, 68 (4th Cir. 1990), there is an abuse of discretion when the
sentencing court's exercise is flawed by erroneous factual or legal
premises. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
The district court's exercise of its discretion in this instance was
flawed by the court's reliance on an erroneous legal premise, namely
that the court could depart to the two levels of criminal history with-
out considering the intermediate level.

The Government argues that the district court sufficiently complied
with Rusher because the court did not simply determine a sentence
and then choose the appropriate criminal history category post hoc to
encompass a sentence in the applicable range. Appellee's Br. at 12;
cf. Rusher, 966 F.2d at 883. We disagree. The Government concedes
that the district court did not specifically consider category V.
Although it may well be a "reasonable assumption" that the court
implicitly considered category V inadequate, as the Government sug-
gests, Rusher requires an explicit consideration of the issue, however
cursory. The district court made no such explicit consideration. This
was error and it requires that we remand this case for resentencing.

Hardy's other assignments of error are without merit and need not
detain us for long. We find that, despite the sentencing court's failure
to consider the intermediate level, the decision to depart upward was
sufficiently explained and was based on reliable information con-
tained in a presentence investigation report to which Hardy did not
object. Hardy's argument that the juvenile adjudications must be
crimes of violence to form the basis for an upward departure is with-
out support and aside from the point. See U.S.S.G. § 4A1.2(d)(2),
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*United States v. Cash, 983 F.2d 558, 561 n.7 (4th Cir. 1992), cert
denied, 508 U.S. 924 (1993); see also United States v. Harrison, 58 F.3d
115, 121 (4th Cir. 1996) (Niemeyer, J., dissenting).

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application note 8. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.

VACATED AND REMANDED

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