                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 6, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30490
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ELANDER MARK LACHNEY,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                    USDC No. 3:03-CR-179-ALL
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Elander Mark Lachney appeals the sentences imposed by the

district court following entry of his guilty pleas to charges of

bank fraud (Count One), illegal use of means of identification of

another to commit bank fraud (Count Two), and illegal use of a

social security number (Count Three).   The district court

sentenced Lachney, inter alia, to concurrent terms of 115 months

of imprisonment on Counts One and Two and to a concurrent term of

sixty months of imprisonment on Count Three.


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 04-30490
                                 -2-

     For the first time on appeal, Lachney contends that he was

sentenced in violation of his Sixth Amendment right to a trial by

jury.   Lachney relies on Blakely v. Washington, 124 S. Ct. 2531

(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000) as

support for his position.   As Lachney concedes, his argument is

foreclosed by our decision in United States v. Pineiro, 377 F.3d

464, 465-66   (5th Cir. 2004), petition for cert. filed (July 14,

2004) (No. 04-5263); cf. Wicker v. McCotter, 798 F.2d 155, 157-58

(5th Cir. 1986).

     Lachney also contends for the first time on appeal that the

district court reversibly erred when it departed upward from

offense level seventeen to offense level twenty-three.   He

asserts that the district court used impermissible factors to

justify the upward departure.   He asserts in addition that the

district court double-counted when it used his prior convictions

and the fact that he had relocated and continued committing

offenses in other jurisdictions as justification for the upward

departure.    Lachney does not challenge the upward departure from

criminal history category IV to category VI.

     Because Lachney did not object to the district court’s

finding that the appropriate guideline range was 92 to 115 months

of imprisonment, we review for plain error.    See United States v.

Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).    To demonstrate plain

error, Lachney must show clear or obvious error that affects his

substantial rights; in such case, we may exercise our discretion
                           No. 04-30490
                                -3-

to correct a forfeited error that seriously affects the fairness,

integrity, or public reputation of judicial proceedings.      See

Ravitch, 128 F.3d at 869 (citing United States v. Olano, 507 U.S.

725, 730-36 (1993); United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc)).

     The record shows, contrary to Lachney’s argument, that the

district court did not rely on Lachney’s prior arrests, his

lifestyle of drug use, and his lack of education and training as

justification for the upward departure.   The district court cited

Lachney’s prior convictions that did not contribute points toward

his criminal history score; Lachney’s failure to adhere to

conditions of probation, parole, or supervised release; Lachney’s

commission of offenses while on periods of release; Lachney’s

propensity toward recidivism; and Lachney’s threat to the safety

of the community, all of which are permissible bases for an

upward departure.   See U.S.S.G. § 4A1.3(a)(4)(B); U.S.S.G.

§ 4A1.3(a)(2) & comment. (n.2.).

     The record refutes Lachney’s argument that the district

court double-counted by using his prior convictions and his

relocation and continued commission of offenses in other

jurisdictions as grounds for the upward departure in his offense

level.   The district court explained that it was departing beyond

criminal history category VI because Lachney committed crimes

while on probation, parole, or supervision; his offenses were

becoming violent; his record showed that he would continue to
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                                -4-

commit crimes; and he presented a danger to the community.

Furthermore, Lachney has not cited a guideline provision that

forbids the alleged double-counting.    See United States v.

Harrington, 82 F.3d 83, 89 n.6 (5th Cir. 1996) (double-counting

is not prohibited unless guideline forbids it).   Lachney has not

shown error, much less plain error.    See Ravitch, 128 F.3d at

869.   Accordingly, the judgment of the district court is

AFFIRMED.
