                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2342
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the Western
                                      * District of Missouri.
Daniel W. Porter,                     *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: December 13, 2005
                                Filed: March 7, 2006 (corrected 3/10/06)
                                 ___________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       Daniel W. Porter pleaded guilty to being a felon in possession of firearms in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence investigation
report (PSR) determined his criminal history category was II and calculated his
guideline sentencing range at forty-one to fifty-one months. The district court1
concluded Porter's criminal history was understated and departed upward under
United States Sentencing Guidelines (U.S.S.G.) § 4A1.3 to criminal history category
IV, resulting in a guideline sentencing range of fifty-seven to seventy-one months.

      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
After considering the 18 U.S.C. § 3553(a) sentencing factors, the district court
imposed a non-guidelines sentence of 120 months – the statutory maximum for the
offense. On appeal, Porter argues the guidelines departure was an abuse of discretion
and the non-guidelines sentence was unreasonable. We affirm.

                                            I

       In June 2004, Porter and his wife Tina were living apart. On June 5, Porter
picked up his two children – ages seven and eight – for a weekend visitation. He later
sent a text message to his wife instructing her to go to a local park and retrieve a note.
In the note, Porter stated he had given the children to a family who would care for
them. Tina immediately contacted the police and on June 10 Porter was arrested and
charged in state court with parental kidnapping. The charge was later amended to
include terrorizing and kidnapping. In the course of the investigation into his missing
children, Porter admitted throwing nine to fourteen guns into the Missouri River in
late May 2004. He told police he intended to kill himself and threw the guns away so
no one else would have them. Police recovered six of the firearms from the area
where Porter disposed of them.

        Porter was charged with being a felon in possession of firearms and pleaded
guilty. At the sentencing hearing, the district court determined Porter's criminal
history category II under-represented his criminal history and departed upward under
§ 4A1.3 to criminal history category IV. In deciding to depart, the court considered
two uncounted prior convictions – a 1984 conviction for carrying a concealed weapon
and a 1989 conviction for stealing. The court also took into account several pending
and unresolved state charges, including a charge of driving while intoxicated on June
7, 2004, the violation of an adult abuse order on June 10, 2004, and the parental
kidnapping, kidnapping, and terrorizing charges. The court found by a preponderance
of the evidence Porter committed the pending offenses and concluded Porter's criminal
history was better represented by criminal history category IV. Accordingly, the

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district court departed upward to a guideline sentencing range of fifty-seven to
seventy-one months.

       Next, the district court considered the sentencing factors set forth in § 3553(a).
The court found the nature and circumstances of the felon in possession offense
unremarkable when compared to similar offense conduct. The court also concluded
Porter's characteristics, the seriousness of the offense, and the need to provide just
punishment, were appropriately addressed by the guideline range of fifty-seven to
seventy-one months. However, after considering deterrence and the need to protect
the public – specifically Tina Porter – the court concluded the guideline sentence was
insufficient. The court stated

      [T]here seems to be no point at which Mr. Porter is willing to stop in his
      desire to inflict injury and pain on Mrs. Porter. Even to the point of
      taking the parents away from Lindsey and Samuel [the Porters' children].

      You didn't just take Mrs. Porter away from them. You took yourself
      away from them. And assuming those kids are well and alive, it almost
      brings me to the point of tears to think of the pain that those kids must
      be feeling. I'm not sure that there is any sentence that I am permitted to
      impose under law that would deter Mr. Porter from his desire to inflict
      pain on Mrs. Porter.

Sent. Tr. at 55.

      After taking these factors into account, the court imposed a non-guideline
sentence of 120 months – the statutory maximum, and ordered the federal sentence to
run consecutive to any state sentence if Porter was convicted of the pending parental
kidnapping, kidnapping, and terrorizing charges. Porter argues the guidelines
departure was an abuse of discretion and the non-guidelines sentence was
unreasonable.




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                                            II

       At sentencing, a district court must determine the appropriate guideline
sentencing range, including whether "a traditional departure is appropriate under . .
. the Federal Sentencing Guidelines." United States v. Haack, 403 F.3d 997, 1002-03
(8th Cir. 2005), cert. denied, 126 S. Ct. 276 (2005). "Once the guidelines sentence is
determined, the court shall then consider all other factors set forth in [18 U.S.C.]
§ 3553(a) to determine whether to impose the sentence under the guidelines or a non-
guidelines sentence." Id. at 1003. On appeal, we review the district court's
interpretation and application of the guidelines de novo and any departure from the
guideline range for an abuse of discretion. United States v. Mashek, 406 F.3d 1012,
1017 (8th Cir. 2005). If we conclude the guidelines were properly employed, we next
"review [the] sentence for unreasonableness, guided by the sentencing factors listed
in 18 U.S.C. § 3553(a)." United States v. Pizano, 403 F.3d 991, 995 (8th Cir. 2005).

        We first consider whether the district court abused its discretion when it
departed upward under § 4A1.3. Section 4A1.3 states

      If reliable information indicates that the criminal history category does
      not adequately reflect the seriousness of the defendant's past criminal
      conduct or the likelihood that the defendant will commit other crimes,
      the court may consider imposing a sentence departing from the otherwise
      applicable guideline range.

        Under § 4A1.3 the district court may consider "[p]rior sentence(s) not used in
computing the criminal history category," § 4A1.3(a)(2)(A), "[i]f the court finds that
a [prior] sentence . . . is evidence of similar, or serious dissimilar, criminal conduct .
. . ," U.S.S.G. § 4A1.2 cmt. n.8. The court may also take into account "prior similar
adult criminal conduct not resulting in a criminal conviction." § 4A1.3(a)(2)(E); see
also United States v. Joshua, 40 F.3d 948, 953 (8th Cir. 1994) (holding the guidelines
permit a district court to consider conduct underlying pending charges if it is


                                           -4-
admitted). Here, the district court counted Porter's previous convictions for carrying
a concealed weapon and stealing, and took into account the conduct underlying the
pending state charges for parental kidnapping, kidnapping, and terrorizing.

       Porter argues the district court should not have considered his previous
conviction for carrying a concealed weapon because it was a misdemeanor and there
is no evidence the weapon was a firearm. We disagree. The charge of carrying a
concealed weapon implies the same concerns as does the possession of firearms by a
felon, irrespective of whether the weapon was a firearm. Accordingly, we conclude
the district court properly considered the conviction as evidence of prior similar or
serious criminal conduct. See United States v. Lang, 898 F.2d 1378, 1380-81 (8th Cir.
1990) (holding district court properly considered, among others, prior misdemeanor
conviction for carrying a concealed weapon when imposing an upward departure
under § 4A1.3.)

       Next, Porter argues the 1989 conviction for stealing should not have been
considered as it represents neither similar nor serious criminal conduct. We agree the
charge of stealing was not similar to the possession of firearms charge. Moreover, it
involved the theft of two pigs and did not reflect serious criminal conduct.
Nevertheless, under the facts of this case, it is apparent the district court's overriding
concern in fashioning an appropriate sentence was the likelihood Porter would commit
future crimes and the need to protect the public. Thus, in this instance, we conclude
the 1989 charge was properly considered as a basis for the departure. See United
States v. Agee, 333 F.3d 864, 867 (8th Cir. 2003) ("[E]ven offenses which are minor
and dissimilar to the instant crime may serve as evidence of the likelihood of
recidivism if they evince the defendant's incorrigibility.").

      Finally, Porter argues the pending state charges should not have been
considered under § 4A1.3(a)(2)(E) because they do not involve "prior" criminal
conduct. Instead, his possession of firearms predated the conduct underlying the state

                                           -5-
charges. The government argues the district court properly considered the conduct as
Porter failed to object to the factual basis as set forth in the PSR.

        The factual predicate for the district court's consideration of the pending
charges is not at issue. Porter did not object to the PSR's statement of the facts
underlying the state charges and they are deemed admitted. The more salient issue is
whether this conduct – occurring after the conduct underlying Porter's guilty plea –
was properly considered under § 4A1.3(a)(2)(E). We believe it was. The information
which may be considered by a district court when departing under § 4A1.3 is not
limited to those enumerated examples listed under § 4A1.3(a)(2). United States v.
Sweet, 985 F.2d 443, 446 (8th Cir. 1993) (noting the district court's consideration of
information upon which to base a departure includes but is not limited to those
enumerated factors in § 4A1.3(a)(2)(A)-(E)). Instead, the court is free to consider,
among other information, the substantial likelihood a defendant will commit future
crimes or his capacity for future violence. Id. at 445; United States v. Cook, 972 F.2d
218, 222 (8th Cir. 1992). The district court discussed Porter's ongoing desire to harm
his wife, and noted its belief there was no sentence that would dissuade him from
inflicting future injury and pain. Moreover, it was apparent Porter intended to persist
in depriving his children of their mother and to prevent her from reuniting with them.2
In view of these serious concerns, we conclude the district court properly considered
Porter's propensity to commit future crimes and his capacity for future violence as a
basis for departing under § 4A1.3.

      We next consider whether the district court's imposition of a ten-year sentence
was unreasonable. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 766
(2005) (directing appellate courts to review sentences imposed under the advisory
guidelines system for "unreasonableness" with regard to the factors enumerated in


      2
       During police interrogations Porter claimed he placed the children with another
family, sold them or killed them. The Porter children have never been found.

                                         -6-
§ 3553(a)). Under Booker, courts must consider the nature and circumstances of the
offense; the history and characteristics of the defendant; the need to provide
deterrence, protect the public, and rehabilitate the defendant; and the kinds of
sentences available. 125 S.Ct. at 757; see also § 3553(a).

       The non-guidelines sentence imposed by the district court represents a
significant upward deviation from the guideline sentencing range – even after the
upward departure under § 4A1.3. Nevertheless, our review of the record satisfies us
the district court carefully evaluated the § 3553(a) factors, and after applying them to
the unique facts of this case, arrived at an appropriate sentence. Like the district court,
we are particularly mindful of the need to protect Mrs. Porter and the public. Further,
assuming the Porter children have not already fallen victims to serious harm, we
conclude this sentence will best ensure they suffer no future harm at the hands of their
father.

                                            III

      The order and judgment of the district court are affirmed.
                      ______________________________




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