     Case: 13-10495      Document: 00512681210         Page: 1    Date Filed: 06/30/2014




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

                                                                               FILED
                                    No. 13-10495                           June 30, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAKARI MARKAIL DANIELS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-254-3


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jakari Markail Daniels pleaded guilty to possession of counterfeit
securities in violation of 18 U.S.C. § 513(a), and the district court sentenced
him above the advisory guideline range to 51 months of imprisonment and
three years of supervised release.          Daniels argues that the district court
violated the Equal Protection Clause by improperly considering race and sex
in imposing his sentence. Daniels bases this argument on nothing other than


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-10495

the fact that his co-defendant, Tina Maronde, a white female, received an 18-
month sentence, and that he, a black male, received a 51-month sentence.
Daniels offers no other evidence or argument to support his allegation that the
district court improperly considered his race and sex in sentencing him. He
ignores the district court’s stated reasons for imposing a sentence above the
guideline range based on his criminal history. Daniels has not established that
any disparity between the two sentences rises to the level of a constitutional
violation by showing that his co-defendant was “similarly situated” to him and
“unfairly enjoy[ed] benefits that he does not or escape[d] burdens to which he
is subjected.” See United States v. Cronn, 717 F.2d 164, 169 (5th Cir. 1983).
      Next, Daniels argues that his sentence was procedurally unreasonable
because the district court improperly considered two juvenile offenses for
which he was not convicted and which were not similar to the offense of
conviction in departing upward under U.S.S.G. § 4A1.3. Although Daniels
objected to the substantive reasonableness of his sentence, he did not make the
exact argument he makes now on appeal, that consideration of the juvenile
offenses was improper under § 4A1.3.       The lack of objection calls for the
application of the plain error standard of review. See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007). Even if counsel’s general statements
about the consideration of Daniels’s juvenile offenses were sufficient to
preserve the issue, Daniels has not shown an abuse of discretion. See United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
      Section 4A1.3(a) expressly authorizes an upward departure based on a
finding by the district court that a defendant’s criminal history category
substantially underrepresents the seriousness of the defendant’s criminal past
or the likelihood that he will commit other crimes. Zuniga-Peralta, 442 F.3d
at 347-48. “The list of categories of information regarding conduct that ‘may’



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support a departure under § 4A1.3(a)(2) is nonexclusive.” United States v.
Beltran-Cervantes, 468 F. App’x 411, 413 (5th Cir. 2012). Consideration of
prior juvenile crimes is not prohibited. See United States v. Garrett, 471 F.
App’x 309, 310 (5th Cir. 2012) (holding that the district court did not abuse its
discretion in upwardly departing under § 4A1.3 where the court considered
numerous unscored juvenile convictions); United States v. Williams, 476 F.
App’x 1, 3 (5th Cir. 2012) (stating that the district court did not improperly rely
on reliable information of the defendant’s juvenile offenses not resulting in
convictions in departing upward and so counsel was not ineffective for failing
to object on that basis); United States v. LeBlanc, 442 F. App’x 113 (5th Cir.
2011) (affirming where the district court based the § 4A1.3 upward departure
on numerous juvenile and adult criminal convictions that were not counted in
the criminal history score); United States v. Trevino, 268 F. App’x 277, 278 (5th
Cir. 2008) (holding that the district court did not err in imposing an upward
departure that included consideration of the defendant’s multiple convictions
as a juvenile).
      The fact that Daniels’s present offense was different in nature from his
previous offenses, and that some of those offenses did not result in convictions,
does not preclude the district court’s consideration of such offenses under
§ 4A1.3. The listed factors in § 4A1.3(a)(2) are not exhaustive, and the district
court can consider serious dissimilar criminal conduct not resulting in a
conviction. See United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)
(noting that the commentary to § 4A1.2 allows a court to consider serious
dissimilar conduct). Daniels’s prior convictions and criminal conduct cited by
the district court as justifying an upward departure under § 4A1.3, both
juvenile and adult, involving possession of controlled substances, evading
arrest and eluding police, assault, failure to identify to law enforcement, and



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burglary of a habitation, are serious crimes which pose an obvious danger to
society and justify the district court’s decision to depart. See United States v.
Lee, 358 F.3d 315, 329 (5th Cir. 2004).
      The district court did not plainly err or abuse its discretion by upwardly
departing under § 4A1.3 for improper reasons. See Zuniga-Peralta, 442 F.3d
at 347-48; United States v. Simkanin, 420 F.3d 397, 416 n.21 (5th Cir. 2005).
      Also challenging the substantive reasonableness of his sentence, Daniels
argues that the district court erred by imposing a substantively unreasonable
sentence of 51 months in light of the nature and circumstances of the offense
and the kinds of sentences available. Daniels’s argument completely ignores
the reasons given by the district court for imposing the 51-month sentence and
does not challenge the substantive reasonableness of the district court’s
sentence on the basis of his criminal history.       Daniels’s criminal history
included five juvenile crimes, including assault, and six adult criminal
episodes, including burglary of a habitation. His criminal history score was
based on only two of these offenses. The district court noted all of the offenses
not included in his criminal history score in deciding that this history was
“disturbing” enough to warrant an upward departure. Regarding the extent of
the departure, the record supports the district court’s imposition of a 51-month
term of imprisonment, outside the guideline range of 24 to 30 months, but well
under the statutory maximum of 120 months. See Zuniga-Peralta, 442 F.3d at
347-48 (upholding an upward departure from a range of 27-33 months of
imprisonment to a sentence of 60 months).
      The district court did not abuse its discretion in the reasons for or in the
extent of the departure in imposing the sentence of 51 months. See Gall v.
United States, 552 U.S. 38, 51-52 (2007).
      AFFIRMED.



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