                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                            F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                             January 4, 2005
                                  FOR THE FIFTH CIRCUIT
                                                                                         Charles R. Fulbruge III
                                                                                                 Clerk


                                           No. 04-10217
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                       Plaintiff-
                                                          Appellee,

                                                 versus

GEORGE MONTES SUSTAITA, also known as
George Montes Sustaita III,

                                                                                     Defendant-
                                                          Appellant.

                        ----------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Northern District of Texas
                                  USDC No. 4:03-CR-236-ALL-A
                         ---------------------------------------------------------

Before WIENER, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

       George Montes Sustaita appeals his sentence following his guilty plea conviction for escape.

18 U.S.C. § 751.

       Sustaita first argues that the district court erred by imposing a two-level upward adjustment

for obstruction of justice, which was based on the district court’s finding that he had committed

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
perjury. A witness testifying under oath commits perjury by giving “false testimony concerning a

material matter with the willful intent to provide false testimony, rather than as a result of confusion,

mistake or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). We review a factual

finding of obstruction of justice for clear error. United States v. Adam, 296 F.3d 327, 334 (5th Cir.

2002).

         Although Sustaita’s testimony at sentencing was not “material” to his guilt or innocence, it

was “material” to a relevant issue at sentencing: the recommendation to deny a reduction for

acceptance of responsibility. See United States v. Storm, 36 F.3d 1289, 1297 (5th Cir. 1994)

(“Material” testimony is that which, “if believed, would tend to influence or affect the issue under

determination”). The district court’s conclusion that Sustaita intentionally gave false testimony with

the intent of trying to influence the Court on this issue also satisfied the requirement of a finding of

an obstruction of justice “that encompasses all of the factual predicates for a finding of perjury.”

Dunnigan, 507 U.S. at 95.

         Sustaita also argues that the district court erred by denying a two-level reduction for

acceptance of responsibility based on his allegedly untruthful statements regarding the reasons for his

escape. A district court’s determination that a defendant is not entitled to an adjustment for

acceptance of responsibility is entitled to great deference and should not be disturbed unless it is

“without foundation.” United States v. Washington, 340 F.3d 222, 227 (5th Cir.), cert. denied, 124

S. Ct. 942 (2003). Sustaita tried to mitigate his guilt by indicating that he felt compelled to escape

because of unwanted sexual advances. By providing false information in an attempt to minimize his

conduct, Sustaita failed to clearly demonstrate acceptance of responsibility.




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        Sustaita also challenges the district court’s upward departure. The district court stated that

a departure was warranted because Sustaita’s Criminal History Category of VI did not adequately

reflect his criminal history or the likelihood of recidivism. These bases are specifically listed in the

guidelines as a permissible basis for departure. See U.S.S.G. § 4A1.3. We also agree that a

departure was justified based on Sustaita’s extensive criminal history, the seriousness of his past

crimes, and the apparent ineffectiveness of past brief sentences in deterring future criminal conduct.

        We review the extent of an upward departure for an abuse of discretion. See United States

v. Bell, 371 F.3d 239, 243 (5th Cir.), cert. denied, 2004 WL 2202431 (U.S. Oct. 4, 2004)

(No. 04-5954). When departing upward from Criminal History Category VI, the district court

“should structure the departure by moving incrementally down the sentencing table to the next higher

offense level in Criminal History Category VI until it finds a guideline range appropriate to the case.”

U.S.S.G. § 4A1.3(a)(4)(B). We have rejected the notion that a district court, when departing on the

basis of § 4A1.3, must ritualistically discuss each offense level it rejects before arriving at its final

decision. See United States v. Daughenbaugh, 49 F.3d 171, 175 (5th Cir. 1995).

        The district court’s reasons for the 60-month sentence imposed provide an implicit rationale

for its rejection of the intermediate offense levels. See United States v. Lambert, 984 F.2d 658, 663

(5th Cir. 1993). The departure from a calculated guidelines range of 41-51 months of imprisonment

to a sentence of 60 months of imprisonment also does not appear to be excessive when compared to

other departures that have been upheld by this court. Cf. Daughenbaugh, 49 F.3d at 174-75

(upholding a departure from a guideline range of 57-71 months to a sentence of 240 months); United

States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994) (increase from a range of 63-78 months to 180

months).


                                                 -3-
       Finally, relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), Sustaita asserts that his

sentence was based on factual findings that were not alleged in his indictment, that he did not admit

to, and that were not proven beyond a reasonable doubt. He acknowledges that his argument is

foreclosed by this court’s decision in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004).

       AFFIRMED.




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