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

                                                FILED
                                                                 May 5, 2009
                               No. 08-10638
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ABDUSH AKBAR

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:07-CR-66-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Pursuant to a plea agreement, Abdush Akbar pleaded guilty to false
impersonation of an officer or employee of the United States, in violation of 18
U.S.C. § 912. He appeals the sentence of 36 months imposed by the district
court. Akbar argues that the district court erred in relying on uncounted, stale
convictions to depart upward from the guidelines range and that the district
court erred in determining the extent of the departure.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-10638

      An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
If the sentencing decision is procedurally sound, the appellate court then
considers “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Reasonableness review, in the context of a guidelines departure, requires
this court to evaluate both “the district court’s decision to depart upwardly and
the extent of that departure for abuse of discretion.”            United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and
citation omitted). However, when, as here, a defendant fails to object to the
district court’s decision to depart upwardly in the district court, review is for
plain error. See United States v. Hernandez, 485 F.3d 270, 272-73 (5th Cir.
2007).
      In order to establish plain error, Akbar must show that (1) there is an
error, (2) that is clear or obvious, and (3) that affects his substantial rights.
United States v. Olano, 507 U.S. 725, 731-37 (1993).           If these factors are
established, the decision to correct the error is within the sound discretion of this
court, which will not be exercised unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at 736.
      The sentencing court may depart from the guidelines range “[i]f reliable
information    indicates   that   the   defendant’s   criminal   history   category
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.” U.S.S.G.



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§ 4A1.3. If a sentence was imposed outside the period within which sentences
are counted in determining the criminal history category, the court may consider
“evidence of similar, or serious dissimilar, criminal conduct” in determining
whether an upward departure is warranted under § 4A1.3. § 4A1.2, comment.
(n.8).
         Akbar argues that his stale convictions may not be considered because the
convictions are neither “serious” nor “similar” to the instant offense within the
meaning of § 4A1.2, comment. (n.8).           The Guidelines do not define what
constitutes “serious” criminal conduct, nor has this court done so. See United
States v. Estrada, 31 F. App’x 158, *1 (5th Cir. 2001). Given the lack of any
guidance from this court on what constitutes serious criminal conduct in this
context, the district court could not have committed plain error. See United
States v. Garcia-Rodriguez, 415 F.3d 452, 456 (5th Cir. 2005) (where law was
unsettled, error could not be plain).
         Moreover, the district court addressed the stale convictions in the context
of a permissible basis for departure: that Akbar’ guidelines range did not capture
his likelihood of recidivism. Akbar has therefore failed to show that the district
court plainly erred in relying on his stale convictions to upwardly depart. See
Olano, 507 U.S. at 731-37.
         Akbar also challenges the extent of the upward departure. In the district
court, Akbar did not object to the extent of the departure; therefore, review is for
plain error. See id. The extent of the departure from a guidelines range of 15-21
months to a sentence of 36 months of imprisonment is well within the range of
departures this court has upheld. See United States v. Smith, 417 F.3d 483,
492-93 & n. 40 (5th Cir. 2005) (upholding departure from 41 months to 120
months, an increase of 79 months and nearly 300%, and citing cases upholding
even greater departures); United States v. Jones, 444 F.3d 430, 433, 442-43 (5th
Cir. 2006) (upholding departure from guidelines range of 46-57 months to 120



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months, a more than 200% increase). Akbar has not shown plain error. See
Olano, 507 U.S. at 731-37.
     AFFIRMED.




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