UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4310

DONALD EUGENE PUCKETT,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-96-30-A)

Submitted: December 30, 1997

Decided: June 22, 1998

Before WILKINS and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Joseph F. Dene, DENE & DENE, P.C., Abingdon, Virginia, for
Appellant. Robert P. Crouch, Jr., United States Attorney, Rick A.
Mountcastle, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Donald Eugene Puckett appeals the 188-month sentence he
received after he pled guilty to three counts of being a felon in posses-
sion of a firearm, see 18 U.S.C.A. § 922(g)(1) (West Supp. 1998), and
four counts of possession of an unregistered destructive device, see
26 U.S.C. §§ 5861(d), 5871 (1994). Puckett contends that the district
court erred in departing above the applicable guideline range pursuant
to U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995). For the
reasons explained below, we vacate the sentence and remand for
resentencing.

The district court concluded that Puckett's offense level of 28,
combined with his Criminal History Category III, resulted in an appli-
cable guideline range was 97-121 months. Puckett did not receive
criminal history points for 14 of his prior sentence because those sen-
tences were imposed more than ten years before commencement of
instant offenses and were for less than a year and a month imprison-
ment. See U.S.S.G. § 4A1.2(e). Relying on these prior uncounted sen-
tences, the district court found that Puckett had engaged in a pattern
of serious criminal conduct since the age of 17, that he had 12
uncounted offenses of an assaultive or destructive nature, and that he
had shown an unusual pattern of serious criminality involving alco-
hol, drugs, firearms, and mental instability. Thus, the district court
concluded that an upward departure pursuant to U.S.S.G.§ 4A1.3 was
appropriate. The court assigned a total of 14 criminal history points
to Puckett's previously uncounted sentences, giving him a total of 18
criminal history points. And, finding that a Criminal History Category
VI was inadequate, the district court departed from offense level 28
to offense level 29, resulting in a guideline range 152-188 months.
The court imposed a sentence at the top of the new range.

A sentencing court is encouraged to depart upward when a defen-
dant's Criminal History Category does not adequately reflect the seri-

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ousness of his past criminal conduct or the likelihood that he will
commit other crimes. See U.S.S.G. § 4A1.3. When a factor being con-
sidered as a basis for departure is an encouraged factor, a court must
determine whether or not it has been taken into account by the appli-
cable guideline. See United States v. Brock, 108 F.3d 31, 34 (4th Cir.
1997) (citing Koon v. United States, 116 S. Ct. 2035, 2045 (1996)).

Sentences imposed outside the applicable time period are taken
into account under U.S.S.G. §§ 4A1.1 and 4A1.2 because the Sen-
tencing Commission has instructed that such prior sentences are not
to influence a defendant's current sentence except to the extent that
an old sentence may be considered as a basis for departure if it "is
evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G.
§ 4A1.2, comment. (n.8); see United States v. Wyne, 41 F.3d 1405,
1408-09 (10th Cir. 1994); United States v. Eve , 984 F.2d 701, 704-05
(6th Cir. 1993).

Here, the district court erred in concluding that all of Puckett's
prior sentences could be considered in determining whether a depar-
ture was appropriate. Several of Puckett's prior sentences were
imposed for conduct that arguably was similar to that of the instant
offenses, for example possession of a concealed weapon and unlawful
discharge of a weapon. However, the remainder of the offenses were
neither particularly serious nor similar to the instant offenses. We,
therefore, vacate Puckett's sentence and remand for resentencing. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

VACATED AND REMANDED

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