                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4046



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JASON T. MAJERCIK,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-04-56)


Submitted:   August 5, 2005                 Decided:   August 16, 2005


Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David H. Wilmoth, Elkins, West Virginia, for Appellant. Thomas E.
Johnston, United States Attorney, Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jason T. Majercik pled guilty1 to one count of bank fraud

in violation of 18 U.S.C. § 1344 (2000), and was sentenced to

sixty-three months’ imprisonment.   Majercik’s only issue on appeal

is a challenge to the district court’s upward departure on the

basis of Majercik’s likelihood that he would commit other crimes.

Finding no error, we affirm.

           Although Majercik’s appellate brief was filed several

months after the Supreme Court’s decision in United States v.

Booker, 125 S. Ct. 738 (2005), it does not assert any claim based

upon that holding.   Rather, it relies on pre-Booker authority to

assert that the district court’s decision to depart from the

Sentencing Guidelines range constituted an abuse of discretion

under Koon v. United States, 518 U.S. 81, 100 (1996).       Following

Koon, we had concluded that a district court may depart upward from

a guidelines range if it identifies a factor that is an encouraged

basis for departure and is not taken into account by the applicable

guideline.    United States v. Brock, 108 F.3d 31, 34 (4th Cir.

1997).2   Under U.S. Sentencing Guidelines Manual § 4A1.3    (2002),3


     1
      Majercik’s plea agreement contained an appellate waiver
provision, but because the Government has failed to assert the
waiver, we address the substance of Majercik’s claim.
     2
      If the departure is justified, the appeals court must review
the extent of the departure deferentially. See United States v.
Davis, 380 F.3d 183, 188 n.3 (4th Cir. 2004), cert. denied, ___
U.S. ___ (Oct. 18, 2004) (No. 04-6377); see also 18 U.S.C.A.
§ 3742(e)(3)(C) (West Supp. 2004). However, Majercik did not argue

                               - 2 -
“[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, an upward departure may be

warranted.”    Our review of the record demonstrates that an upward

departure was well within the district court’s discretion because

Majercik’s extensive criminal history reflects an overwhelming

likelihood that he will commit other crimes.

            Even applying Booker, we find no basis to conclude that

Majercik’s sentence must be revisited.        In imposing a sixty-three

month sentence prior to Booker, the district court stated that it

would impose an identical sentence even if the guidelines were

treated as advisory.    Because the alternative sentence assessed by

the district court is identical to Majercik’s actual sentence and

reasonable under the facts, Majercik’s sentence withstands review

following Booker.

            Accordingly, we affirm the judgment of the district

court.    We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                 AFFIRMED


at trial, nor does he argue on appeal, the reasonableness of the
extent of the upward departure. Accordingly, we conclude Majercik
has waived the issue.
      3
       Majercik was sentenced under the 2002 Guidelines.

                                 - 3 -
