          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  April 11, 2008
                                 No. 07-50528
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

CHESTER RAY WILLIAMS, also known as Christopher R Williams

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:06-CR-1646-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Chester Ray Williams appeals the sentence imposed following his guilty
plea conviction of conspiracy to attempt to possess with intent to distribute over
50 kilograms of marijuana and attempting to possess with intent to distribute
over 50 kilograms of marijuana. He argues that the district court erred by
imposing two consecutive 30-month sentences. Williams asserts that this
violated U.S.S.G. § 5G1.2(c), the “spirit” of 18 U.S.C. § 3584, the purposes of the
Guidelines, and the statements of the Sentencing Commission. He also contends

      *
      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should not be published and is not precedent except under the limited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. 07-50528

that the district court erred in the factual findings on which the departure was
based.
      In imposing consecutive sentences, the district court upwardly departed
under U.S.S.G. § 4A1.3 based on the underrepresentation of Williams’s criminal
history. The district court relied on the circumstances of the offense, the fact
that Williams received no criminal history points for two prior drug trafficking
offenses, and Williams’s propensity to continue committing crimes. These are
valid factors to consider under18 U.S.C. § 3553(a)(2), and the extent of the
district court’s departure was reasonable. See United States v. Zuniga-Peralta,
442 F.3d 345, 347-48 (5th Cir.) (upholding departure of almost twice the advisory
guidelines range), cert. denied, 126 S. Ct. 2954 (2006). Williams’s contention
that § 5G1.2(c) required the district court to impose concurrent sentences is
misplaced. The “total punishment” referred to in § 5G1.2(c) does not include
upward departures. United States v. Martinez, 274 F.3d 897, 904 (5th Cir.
2001). Additionally, Williams’s reliance on 28 U.S.C. § 994(l)(2) also is misplaced
because the court departed under § 4A1.3, rather than simply imposing
consecutive sentences.
      Williams’s assertion that the district court’s finding that the marijuana
was going directly to street level distribution was erroneous is without merit
because, regardless whether there was marijuana available for Williams to
purchase from the undercover agents, the district court’s determination of his
intent to distribute the marijuana was not error based on the information in the
PSR. Finally, in the absence of a contention by Williams that he provided
truthful information or that there were no safety valve briefing discussions, the
fact that there is no record evidence of such discussions does not establish that
the district court erred in its factual findings. Because Williams has not shown
error, plain or otherwise, his sentence is affirmed. See United States v. Olano,




                                        2
                                 No. 07-50528

507 U.S. 725, 731-37 (1993); United States v. Cisneros-Guitierrez, No. 06-11156,
 F.3d    , 2008 WL 383024 at *8 (5th Cir. Feb. 13, 2008).
      The district court’s amended judgment does not accurately reflect the
charges in the superseding indictment to which Williams pleaded guilty.
Accordingly, we modify the amended judgment to state that Williams was
convicted of “Conspiring to attempt to possess with intent to distribute a
quantity of marijuana >50 kilograms” and “Attempting to possess with intent to
distribute a quantity of marijuana >50 kilograms,” and we strike that portion of
the judgment that states that the district court has dismissed “count 2 of the
superseding indictment.” See United States v. Prince, 868 F.2d 1379, 1386 (5th
Cir. 1989).
      AFFIRMED as modified.




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