UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 99-4286

ROCKY LEE STALEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-98-301)

Submitted: November 9, 1999

Decided: November 22, 1999

Before MURNAGHAN, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Robert A.J. Lang,
Assistant United States Attorney, Laura Gendy, Third Year Law Stu-
dent, Greensboro, North 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Unpublished opinions are not binding precedent in this circuit.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:

Rocky Lee Staley was convicted pursuant to his guilty pleas of
making a false statement to a firearms dealer in order to obtain a fire-
arm (18 U.S.C. § 922(a)(6) (1994)) and possession of a firearm by a
convicted felon (18 U.S.C. § 922(g)(1) (1994)). Staley alleges on
appeal that the district court's upward departure under USSG
§ 4A1.3, p.s.,1 was unreasonable. Finding no reversible error, we
affirm.

Staley, who was twenty-three years old at the time of the current
offenses, had over forty adult convictions, dating back to when he
was sixteen. The probation officer assigned twenty-five criminal his-
tory points and placed Staley in the highest criminal history category,
Category VI.2 The district court agreed with the government at sen-
tencing that Staley's significant criminal history warranted an upward
departure pursuant to USSG § 4A1.3, p.s. Noting that Staley had
twelve points more than the minimum required for Category VI, the
district court moved vertically down the sentencing table one level for
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1 U.S. Sentencing Guidelines Manual (1998). This section allows the
sentencing court to depart upward from the normal sentencing range
when the defendant's criminal history category does not adequately
reflect the seriousness of his past criminal behavior or the likelihood that
he will commit other crimes.
2 Staley challenged four of these points at sentencing, and he claims on
appeal that the court agreed that his objections were technically correct.
We find that Staley misunderstands the record. Our review shows that
the district court decided not to address the merits of Staley's challenge
because there were numerous other convictions which were not counted
toward his criminal history score due to limitations imposed by the
Guidelines but which could be considered when determining the extent
of an upward departure. The court ultimately adopted the probation offi-
cer's assessment of twenty-five points.

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every three criminal history points above thirteen, for a total of four
levels.

On appeal, Staley concedes that the district court had the authority
to depart in his case. He also admits that the district court used an
approved formula (i.e., one level for every three criminal history
points). Staley nevertheless argues that the departure in his case was
unreasonable because (1) his record does not contain the type of egre-
gious conduct contemplated by the Sentencing Commission; (2) the
court considered the four points he challenged; (3) it was greater than
what we have approved in prior cases; and (4) the district court failed
to explain why bypassed levels were inadequate.

We review the district court's decision to depart upward for an
abuse of discretion and find none. See United States v. Hairston, 96
F.3d 102, 105 (4th Cir. 1996). An important part of our review is a
determination that the extent of the departure was reasonable. See
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992).

Contrary to Staley's assertions, his conduct was exactly the type
envisioned by the Commission, and we find that the district court
properly considered the factors outlined in USSG§ 4A1.3, p.s. In
addition to the sheer number of prior convictions, the court noted that
there were multiple convictions for assault, burglary, carrying a con-
cealed weapon, and reckless driving. Moreover, the court correctly
concluded that the large number of convictions occurring in a rela-
tively short period of time suggested a propensity to commit future
crimes. In short, we concur with the district court's finding that Staley
engaged in a repeated pattern of serious misconduct.

We further find that the district court properly considered interven-
ing levels in arriving at its final sentence. The court explained the for-
mula it was going to use and identified the sentencing range at each
bypassed level. In addition, the court discussed the sentence at length
with counsel and allowed Staley to speak in his own behalf. The court
ultimately found that only a four-level increase would adequately
account for the twelve "extra" criminal history points.

Staley's remaining claims are equally without merit. As discussed
earlier, the record does not support his claim that the district court

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agreed with his challenge concerning four of his criminal history
points. Finally, we usually do not compare sentences in unrelated
cases, and we find nothing here to warrant an exception from this
general rule.

We therefore affirm Staley's sentence. 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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