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

                                                                  FILED
                                                                October 16, 2008
                                No. 08-30175
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

HOSEA KINCHEN

                                           Defendant-Appellant


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:06-CR-148-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Hosea Kinchen pleaded guilty to two counts of possession with intent to
distribute cocaine base, one count of possession of a firearm in furtherance of a
drug trafficking crime, and one count of possession of a firearm by a convicted
felon. The district court imposed an upward departure pursuant to U.S.S.G.
§ 4A1.3 and sentenced Kinchen to serve a total of 131 months of imprisonment:
three concurrent terms of 71 months of imprisonment on his convictions for
possession with intent to distribute cocaine base and firearm possession by a

      *
      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should not be published and is not precedent except under the limited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. 08-30175

felon and a consecutive sentence of 60 months of imprisonment on his conviction
for firearm possession in furtherance of a drug trafficking crime. The district
court also sentenced Kinchen to serve a total of five years of supervised release.
      Kinchen argues for the first time on appeal that the district court erred in
sentencing him because it did not sufficiently articulate reasons for departing
upwards. An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error.” 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.”
Id. In this case, however, plain error review applies to Kinchen’s arguments
because he did not object in the district court to the upward departure or the
reasonableness of his sentence. See United States v. Peltier, 505 F.3d 389,
390-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).
      Kinchen argues that the district court’s reasons were insufficient because
the district court merely recited his criminal history and stated that the
Guidelines did not adequately reflect his likelihood of recidivism. According to
Kinchen, such reasons amount merely to personal disagreement with how the
Guidelines account for a defendant’s likelihood of recidivism relative to his
criminal history. He argues that a district court is required to identify the
specific portions of the defendant’s criminal history that are not adequately
accounted for by the Guidelines and the reasons why those aggravating factors
warrant a departure under § 4A1.3.
      The district court stated that Kinchen had not learned to refrain from
criminal activity, that a lesser sentence would have seriously understated the
likelihood that Kinchen would again engage in criminal conduct, and that
Kinchen had 23 criminal history points while his criminal history category of VI
required only a minimum of 13 points.         The district court illustrated its
reasoning by recounting a portion of Kinchen’s criminal history that contained

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a series of parole violations. The district court adequately articulated its reasons
for imposing an upward departure. See United States v. Zuniga-Peralta, 442
F.3d 345, 347-48 (5th Cir. 2006).
      Kinchen also asserts that the district court incorrectly stated that he had
a history of “gun offenses.” The district court’s statement that Kinchen had
committed “repeated weapons offenses” does not amount to reversible plain
error, particularly in light of the district court’s extensive articulation of reasons
regarding Kinchen’s failure to refrain from engaging in criminal activity.
      AFFIRMED.




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