UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 96-4846

DAVIN JEROME STEWART,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-96-115)

Submitted: October 31, 1997

Decided: December 8, 1997

Before MURNAGHAN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Brucie
H. Hendricks, Assistant United States Attorney, Charleston, South
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Unpublished opinions are not binding precedent in this circuit.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:

Davin Jerome Stewart was convicted by a jury of conspiracy to
commit bank robbery, 18 U.S.C. § 371 (1994), and bank robbery, 18
U.S.C.A. § 2113(a) (West Supp. 1997), 18 U.S.C. § 2 (1994). He
received the statutory maximum sentence of sixty months imprison-
ment for the conspiracy and a concurrent 150-month term for the rob-
bery. Stewart appeals his sentence, arguing that the district court
clearly erred in finding that he obstructed justice, see U.S. SENTENCING
GUIDELINES MANUAL § 3C1.1 (1995), and in departing from criminal
history category IV to category VI pursuant to USSG§ 4A1.3, p.s.
We affirm.

Stewart conspired with Danny Clark, who was an employee of Pin-
kerton Security and Investigative Services. Together, they staged a
robbery which took place while Clark and Charles Edgeworth, a fel-
low Pinkerton employee, were in a Pinkerton van replenishing cash
canisters for an automatic teller machine. Stewart brandished a stun
gun, sprayed Edgeworth with pepper spray, and made away with
$124,000 in cash. Stewart used Clark's car to carry out his part of the
robbery, which led to Clark's arrest. Clark eventually cooperated with
authorities and testified at Stewart's trial.

Scott Dewell, a friend of Stewart's, also testified. He said that, dur-
ing the morning on the day of the robbery, he and his wife were mak-
ing repairs to the trailer Stewart shared with his girlfriend. At one
point, Dewell and Stewart drove to a hardware store to get some sup-
plies. On the way, Stewart asked Dewell his opinion about the best
way to rob an armored car. Dewell said he would probably use pepper
spray. After they returned to the trailer, while Stewart was outside,
Dewell told his wife about the conversation. Dewell was questioned
by Federal Bureau of Investigation agents after the robbery and ini-
tially did not tell them about the conversation. Later, he contacted the

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FBI and disclosed what Stewart had said. After his arrest, Stewart cal-
led Dewell and, in a tape recorded conversation, tried to persuade
Dewell not to testify and to disclaim his account of the discussion he
had with Stewart before the robbery.

At sentencing, the district court decided that the recorded conversa-
tion was proof that Stewart had attempted to obstruct justice because
he tried to persuade Dewell not to testify and thus tried to conceal
material evidence. See USSG § 3C1.1, comment. (n.3(a), (d))
(attempt to unlawfully influence a witness or to procure another per-
son to conceal material evidence warrants adjustment). Stewart con-
tends on appeal that the court misinterpreted a plea for Dewell to
simply tell the truth, i.e., that the pre-robbery discussion of robbery
methods never occurred. He also argues that the district court failed
to make a clear finding as to the basis for the adjustment. Our review
of the sentencing hearing reveals that the court adequately explained
the basis for its finding and that its finding was not clearly erroneous.
See United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995) (fac-
tual finding concerning obstruction of justice adjustment reviewed for
clear error).

The probation officer calculated that Stewart had nine criminal his-
tory points, which placed him in criminal history category IV. Stewart
had three separate convictions for burglary,1 for which he was sen-
tenced to concurrent sentences on the same day. For the first of these
offenses, Stewart received a youthful offender sentence and was
paroled after a few months. He received suspended sentences for the
other two offenses but soon thereafter participated in a break-in at a
jewelry store. From 1986 to 1994 he was incarcerated.

Treating the three concurrent sentences as related cases, the proba-
tion officer assigned only three criminal history points for all of them.2
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1 The South Carolina offense was"housebreaking," but all three
offenses involved commercial buildings.
2 Under Application Note 3 to USSG§ 4A1.2, prior sentences are
related and counted if they resulted from offenses that (1) occurred on
the same occasion, (2) were part of a single, common scheme or plan,
or (3) were consolidated for trial or sentencing, provided that the

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The probation officer noted that an upward departure might be appro-
priate under USSG § 4A1.3. The district court agreed. Finding that
Stewart's criminal history did not adequately account for the
uncounted burglaries and the likelihood that he would commit further
crimes, the district court departed upward to category VI. Stewart
argues on appeal that no departure was warranted because the guide-
lines provide that offenses consolidated for sentencing do not count
toward the criminal history score. He also contends that the extent of
the departure was unreasonable and that the court failed to explain
why a departure to category V was not sufficient as required under
United States v. Rusher, 966 F.2d 868, 884-85 (4th Cir. 1992) (in
departure for criminal history, district court must consider each cate-
gory before proceeding to higher one and explain why lower category
not adequate).

We review a decision to depart for abuse of discretion. See Koon
v. United States, ___ U.S. ___, 64 U.S.L.W. 4512, 4517 (U.S. June
13, 1996) (Nos. 94-1664/8842); see also United States v. Rybicki, 96
F.3d 754, 757-58 (4th Cir. 1996). An underrepresented criminal his-
tory score is an encouraged basis for departure. However, the district
court's determination that Stewart's criminal history was not ade-
quately accounted for under the applicable guidelines is reviewed de
novo. See Koon, 64 U.S.L.W. at 4517; Rybicki, 96 F.3d at 758. Prior
sentences which are not used in computing a defendant's criminal his-
tory category are properly considered as a factor supporting an
upward departure. See USSG § 4A1.3(a). Therefore, we find no fault
with the district court's decision to depart based on Stewart's
uncounted sentences. The court adequately complied with Rusher by
explaining that Stewart would have been in category VI had the
uncounted sentences contributed to his criminal history score and stat-
ing that category V was, consequently, not sufficient to represent his
past criminal conduct or the likelihood that he would commit other
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offenses were not separated by intervening arrests. The government did
not contest the decision to treat the three burglaries as related cases,
although they occurred on different dates and there was no evidence of
a formal order of consolidation. See United States v. Allen, 50 F.3d 294,
297-99 (4th Cir.), cert. denied, 515 U.S. 1167 (1995) (formal order of
consolidation necessary unless cases factually related).

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crimes. On these facts, neither the departure nor the extent of the
departure was an abuse of discretion.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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