                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 17, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41161
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARIO ALBERTO PENA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-276-1
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Mario Alberto Pena appeals following his guilty-plea

conviction and sentence for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).   Pena challenges

the district court's upward departure on the basis that his

criminal history score under-represented his criminal history.

Because Pena did not object to the district court's departure at




     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-41161
                                -2-

sentencing, our review is for plain error.     See United States v.

Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).

     Pena argues that his sentence must be vacated because the

district court failed to state its reasons on the record for

rejecting an intermediate criminal history category before

departing upward from category IV to category VI.     He also argues

that his criminal history category IV did not significantly

under-represent his criminal history.     The district court held

that a departure was warranted because 1) the criminal history

score did not reflect Pena's likelihood for recidivism; 2) Pena

had an extensive juvenile record for which he received no

criminal history points; and 3) Pena had numerous convictions as

an adult but continued to violate the law in a violent manner.

We conclude that there is no plain error in the district court's

departure.   See United States v. Lambert, 984 F.2d 658, 662-63

(5th Cir. 1993)(en banc); U.S.S.G. § 4A1.3.

     Pena also argues for the first time on appeal that the

Government breached the plea agreement because it did not orally

recommend that he be sentenced at the low end of the applicable

guideline range.   The terms of Pena's plea agreement and the

Government's recommendation are set forth in the presentence

report, however, and there is no plain error.     See United States

v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).

     AFFIRMED.
