UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4572

NELSON MANUEL CABRERA,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-96-37)

Submitted: December 30, 1997

Decided: January 15, 1998

Before HALL, MURNAGHAN, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Arnold L. Husser, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Nelson Manuel Cabrera pleaded guilty to making a false statement
in a passport application in violation of 18 U.S.C.§ 1542 (1994), and
was sentenced to twenty-one months' imprisonment. Cabrera now
appeals arguing that the district court should not have departed
upward in imposing his sentence. Finding no abuse of discretion, we
affirm.

In December 1995, Cabrera applied for a "new" passport at a local
United States Postal Service Station under the name of "Nelson
Padilla," claiming that he lost his old passport. He completed both a
passport application and a lost or stolen passport form. In his applica-
tion, he listed a false birth date and social security number, and
alleged that his parents were United States citizens and that he was
previously issued a valid passport. He further submitted false identifi-
cation documents bearing the name "Nelson Padilla," and swore to the
veracity of his statements.

In October 1996, police arrested Cabrera during a traffic stop after
discovering over 700 grams of crack cocaine in his possession. Cab-
rera subsequently pleaded guilty in North Carolina state court to drug
trafficking by possession and was sentenced to 70 to 84 months
imprisonment. After the United States Department of State deter-
mined that Cabrera's application was false, officials at the detention
center notified federal authorities that Cabrera resembled a person
depicted as "wanted." When interviewed by officials, Cabrera admit-
ted that his true name is Nelson Manuel Cabrera, that he is a citizen
of the Dominican Republic, and that he applied for the passport in
December 1995 supplying false information.

Based on the Sentencing Guidelines, a presentence report assigned
Cabrera an offense level of four including a two-point reduction for
acceptance of responsibility. The report placed Cabrera in a criminal
history category of V after consideration of three drug-related convic-
tions, the fact that Cabrera was on parole at the time of the offense,
and the fact that the instant offense was committed within two years
of release from custody for his second conviction. See USSG

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§§ 4A1.1(d), (e); Chapter 5, Part A.* Under a total offense level of
4 and a criminal history category of V, Cabrera's guideline range for
imprisonment was 4 to 10 months.

The Government moved for an upward departure from the guide-
line range maintaining that the resulting criminal history category did
not adequately reflect the seriousness of Cabrera's past criminal con-
duct and the likelihood of his committing other crimes. At sentencing,
Cabrera opposed the motion, arguing that all necessary considerations
were already taken into account in the criminal history category and
that therefore an upward departure was not warranted. The district
court granted the motion for upward departure and sentenced Cabrera
to 21 months' imprisonment.

We review the district court's decision to depart upward from the
applicable guideline range for an abuse of discretion. See Koon v.
United States, ___ U.S. ___, #6D6D 6D#, 64 U.S.L.W. 4512, 4516-17 (U.S.
June 13, 1996) (No. 94-1664/8842); United States v. Rybicki, 96 F.3d
754, 756-57 (4th Cir. 1996). The court may depart from the guideline
range if it identifies a factor which is an encouraged basis for depar-
ture and not taken into account by the applicable guideline. See
United States v. Brock, 108 F.3d 31, 34 (4th Cir. 1997). If an encour-
aged factor is taken into account by the guidelines, departure is still
permissible if the court determines that, in light of unusual circum-
stances, the guideline level attached to that factor is inadequate. See
id. at 34-35; USSG § 5K2.0. An inadequate criminal history category
is an encouraged ground for departure under USSG§ 4A1.3. This
provision allows for departure from the otherwise applicable guide-
line range where the defendant's criminal history category under-
represents his past criminal conduct or the likelihood that he will
commit future crimes.

The court stated several factors in deciding to grant the motion for
an upward departure. The court noted that Cabrera committed the
subject offense after deportation proceedings against him had begun
and that his false application for a passport was a strong indication
that he planned to return to this country illegally under a false name.
Additionally, Cabrera committed the instant offense as well as a drug-
_________________________________________________________________
*See U.S. Sentencing Guidelines Manual (1996).

                    3
related offense for which he was prosecuted in state court while on
a detainer filed by the Immigration & Naturalization Service. The pre-
sentence report further revealed that Cabrera repeatedly used false,
stolen documents to obtain new aliases and that Cabrera had used
over six aliases in the past. In light of these factors, many of which
were not accounted for by the guidelines, the court found that the
criminal history category did not adequately reflect the seriousness of
Cabrera's past criminal conduct and the likelihood that he would
commit other crimes.

The court also looked to the specific offense characteristic in
USSG § 2L2.1(b)(3) (trafficking in passports) which directs the court
to increase the base offense level by 4 "[i]f the defendant knew,
believed, or had reason to believe that a passport or visa was to be
used to facilitate the commission of a felony offense, other than an
offense involving violation of the immigration laws." Cabrera's crimi-
nal record discloses that for many years Cabrera engaged in drug traf-
ficking activity under different aliases and supplied these false
identities when arrested for narcotics violations. In light of these con-
siderations, we find that the district court did not abuse its discretion
in granting the Government's motion for an upward departure.

We therefore affirm Cabrera's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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