                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4670
JOSEPH MARION HEAD, JR.,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Western District of North Carolina, at Shelby.
                Lacy H. Thornburg, District Judge.
                           (CR-98-102)

                      Submitted: June 13, 2002

                      Decided: August 12, 2002

        Before MOTZ and TRAXLER, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Dismissed in part and affirmed in part by unpublished per curiam
opinion.


                            COUNSEL

William E. Loose, WILLIAM E. LOOSE ATTORNEY AT LAW,
P.A., Asheville, North Carolina, for Appellant. Robert J. Conrad, Jr.,
United States Attorney, Thomas R. Ascik, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
2                       UNITED STATES v. HEAD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

  Joseph Marion Head, Jr., appeals the 360-month sentence imposed
pursuant to his convictions on nine counts of mailing threatening
communications, in violation of 18 U.S.C. § 876 (1994). We affirm.

                                    I

   Head admitted at trial that he had mailed the nine letters in question
to men involved in his state trial for sexual assault. He sent seven let-
ters to Leonard Lowe, who prosecuted him, one letter to Robert Har-
ris, a defense attorney, and one letter to Robert Wolf, another defense
attorney. Lowe, Wolf, and Harris’ widow also testified at trial.

   The presentence report found that Head’s offense level was 33 and
his criminal history category III, for a guideline range of 168-210
months. The district court found that the criminal history category did
not adequately reflect Head’s past conduct. Additionally, the court
determined that the offense level did not adequately reflect the seri-
ousness of the instant offenses. The court departed upward to offense
level 40 and criminal history category VI, for a guideline range of 360
months to life in prison. Head received a 360-month sentence.

                                   II

   Head contends first that his 360-month sentence violates the rule
of Apprendi v. New Jersey, 530 U.S. 466 (2000), because his sentence
allegedly was enhanced by facts not found by the jury. We reject this
argument. Even if the five-year penalty default provision set forth in
the third paragraph of § 876 applies here, Head’s nine convictions
would have subjected him to a maximum statutory penalty of forty-
five years—more than the 360-month guideline sentence he received.
His 360-month sentence, which is below the statutory maximum, did
                        UNITED STATES v. HEAD                           3
not violate Apprendi. See United States v. White, 238 F.3d 537, 543
(4th Cir.), cert. denied, 532 U.S. 1074 (2001).

                                   III

   Head argues that, because the original guideline range of 168-210
months accurately took into account the nature of his present offenses
and his criminal history, the upward departure was not warranted. We
evaluate departures under the test set out in Koon v. United States,
518 U.S. 81 (1996). Under Koon, a sentencing court may, in its dis-
cretion, depart for a factor that is not taken into account by an applica-
ble guideline but is an encouraged basis for departure. Id. at 94;
United States v. Brock, 108 F.3d 31, 34 (4th Cir. 1997). We review
a decision to depart upward for abuse of discretion. United States v.
Hairston, 96 F.3d 102, 105 (4th Cir. 1996).

   With regard to the adequacy of criminal history category III, we
note that the guidelines specifically encourage upward departure if
"the criminal history category significantly under-represents the seri-
ousness of the defendant’s criminal history." U.S. Sentencing Guide-
lines § 4A1.3 (2000). We note that Head repeatedly threatened
individuals associated with his trial and, on occasion, their family
members. Additionally, Head’s violent nature is reflected not only in
the sexual assault but in his having emptied two guns into James
Michael Richards, whom he killed prior to that assault. Head received
no criminal history points for killing Richards because his manslaugh-
ter conviction was overturned on the ground of improperly admitted
evidence and the State never retried Head. We conclude that the dis-
trict court did not abuse its discretion in departing upward, given the
ongoing nature of the subject offenses and the particularly violent
nature of the Richards killing.

   The district court also departed upward from offense level III based
on Head’s "extreme conduct," another encouraged factor under the
guidelines. See USSG § 5K2.8. To qualify as extreme, the crimes of
conviction must be "unusually heinous, cruel, brutal, or degrading to
the victim." Id. The guideline encompasses both completed and
intended extreme conduct. United States v. Gary, 18 F.3d 1123, 1130
(4th Cir. 1994).
4                       UNITED STATES v. HEAD
   The court concluded that Head’s conduct was extreme because
Lowe, Harris, and Wolf had to live for an extended period of time
with the fear that Head, a violent criminal and paranoid schizophre-
nic, would carry out his threats of harming them upon his release
from his state sentence. The court noted that Head increased the num-
ber and specificity of his threats as the time for his release from state
custody drew near. Further, he threatened physical harm and made
extortionate threats. Head suggested that Harris’ daughter be turned
over to him for sexual purposes. His letters communicated a desire for
vengeance and an ability and intention to carry through with his
threats, and they distressed both the recipients of the letters and their
family members. We conclude that the decision to enhance Head’s
offense level was not an abuse of discretion.

                                   IV

   Finally, the district court denied Head’s motion to depart down-
ward because of reduced mental capacity. The district court did not
mistakenly believe that it lacked the authority to depart, and its denial
of Head’s motion is therefore not reviewable on appeal. See United
State v. Edwards, 188 F.3d 230, 238 (4th Cir. 1999).

                                   V

   We accordingly dismiss the appeal to the extent that it relates to the
denial of Head’s motion for downward departure and otherwise
affirm Head’s sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before us and argument would not aid the decisional process.

                        DISMISSED IN PART; AFFIRMED IN PART
