                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3457
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
David L. Chesborough,                  *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: May 15, 2003

                                 Filed: June 26, 2003
                                  ___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
                           ___________

BOWMAN, Circuit Judge.

     David L. Chesborough appeals the decision of the District Court2 to depart
upward from his sentencing guideline range. We affirm.




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
      2
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
       Chesborough pleaded guilty to one count of being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(1). In the plea agreement, Chesborough
admitted to knowingly possessing six firearms. Before sentencing, the District Court
advised the parties that it was considering an upward departure. At sentencing, the
District Court found that Chesborough's criminal history category did not adequately
reflect the seriousness of his past criminal conduct or the likelihood that he would
commit future crimes. The District Court noted that Chesborough "has about as
lengthy a criminal record as any defendant [the district court has] seen." Transcript
of Continued Sentencing Hearing at 48 ("Sentencing Tr."). After detailing
Chesborough's lengthy criminal record, which began in 1958, the District Court
observed that Chesborough "received no criminal history points for four prior
burglary convictions, two prior convictions involving firearms, seven prior
convictions for theft or the like, four prior convictions for offenses involving motor
vehicles, two prior convictions for assaultive conduct, and one prior conviction for
fraud." Id. at 54–55. The probation officer did not include any of this criminal
history in Chesborough's criminal history calculation because it was too old to be
counted. See United States Sentencing Guidelines (U.S.S.G.) § 4A1.2(e)(3) (2001).
Based on these facts, the District Court increased his criminal history level by three
levels (from category II to V) under U.S.S.G. § 4A1.3 and § 5K2.21. Given
Chesborough's offense level of 20, the upward departure resulted in a sentencing
range of sixty-three to seventy-eight months. Id. Ch.5, Pt.A. The District Court
sentenced Chesborough to seventy months of imprisonment. On appeal,
Chesborough argues that the District Court abused its discretion in departing upward
because a criminal history category II does not understate the seriousness of his past
criminal conduct.

       At the outset, we note that, after this case was submitted for consideration,
Congress enacted legislation that affects the standard of review for departure issues
under the sentencing guidelines. PROTECT Act, Pub. L. No. 108-21, § 401, 117
Stat. 650, 667 (Apr. 30, 2003). In pertinent part, the statute appears to require

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de novo review of all cases in which a district court departs from the applicable
guideline range. See id. § 401(d)(2). Prior to the enactment of this law, our review
of a district court's decision to depart from the applicable guideline range was for an
abuse of discretion. See United States v. Thornberg, 326 F.3d 1023, 1026 (8th Cir.
2003) (citing Koon v. United States, 518 U.S. 81, 91 (1996)). We need not address
the issue of what the current standard of review is for a district court's departure from
the sentencing guidelines because we would affirm the upward departure at issue here
under either standard of review. See Thornberg, 326 F.3d at 1026 n.4 (noting that
under the Protect Act, the court would also affirm the district court's upward
departure).

       A district court may depart upward "[i]f 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." U.S.S.G. § 4A1.3. In addition, § 5K2.21 permits a district court to
"increase the sentence above the guideline range to reflect the actual seriousness of
the offense based on conduct (1) . . . underlying a potential charge not pursued in the
case as part of a plea agreement . . . and (2) that did not enter into the determination
of the applicable guideline range." In this case, the District Court relied on both of
these provisions in departing upward from the applicable guideline range. After a
careful review of the record, we are fully satisfied that in departing upward from the
guideline sentencing range, the District Court neither abused its discretion nor, if a
de novo standard be employed, did it err as a matter of law.

      Chesborough first argues that a criminal history category of II does not
understate the seriousness of his past criminal conduct. We reject this argument. The
presentence report (PSR) reflects the fact that Chesborough is a recidivist criminal.
During the last forty-five years, he has been convicted of approximately twenty
crimes. Chesborough fails to cite even a single case in support of his claim that an
upward departure is unwarranted in these circumstances. Moreover, other than

                                          -3-
objecting to one paragraph concerning his criminal history,3 Chesborough made no
other objections to the twenty-four paragraphs in the PSR, which detailed his lengthy
criminal history. See PSR ¶¶ 28–52. As noted previously, the probation officer did
not include many of those past offenses in Chesborough's criminal history calculation
because of the age of those offenses. We have previously held that "[c]onvictions
excluded from a defendant's criminal history score because of their age may be" the
basis for an upward departure. United States v. Andrews, 948 F.2d 448, 449 (8th Cir.
1991). The record before us demonstrates a high likelihood of recidivism, and we
conclude the District Court did not err in determining that Chesborough's criminal-
history score failed to reflect what has been his actual and continual criminal conduct
over many years.

       We also reject Chesborough's contention that the District Court impermissibly
ruled that his possession of six firearms amounted to six different felonies and that
an upward departure under § 5K2.21 cannot be justified on this ground.
Chesborough's base offense level and offense characteristic calculation was founded
on his possession of six firearms. In this case, the government charged him with only
one count of being a felon in possession of a firearm. But as the District Court
observed, each firearm Chesborough unlawfully possessed could have been charged
as a separate federal crime. Although this was not the primary basis for the upward
departure, we see no error in the District Court's reliance on the possession of
multiple firearms as some justification for an upward departure. See U.S.S.G.
§ 5K2.21.




      3
       In that objection, Chesborough objected to the statement in the PSR that he
was convicted of burglary in Fresno, California in 1958. See Addendum to the PSR
at 1, Objection #2. In response, the probation officer noted that "an NCIC records
check revealed that [Chesborough] was arrested on 7/30/59 and charged with
burglary in Sacramento County" and sentenced to a term of imprisonment. Id.

                                         -4-
      For the reasons stated, we find no error in the District Court's upward
departure. Chesborough's sentence is affirmed.

     A true copy.

           Attest:

              CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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