Opinion
No. 10-10075 Summary Calendar.
November 19, 2010.
Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.
Alex R. Tandy, Esq., Law Office of Alex R. Tandy, Hurst, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:08-CR-116-1.
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
Jason Owen appeals from the concurrent 87-month sentences imposed by the district court for his convictions of one count of manufacturing, and one count of distributing, counterfeit currency. He argues that the district court erred by upwardly departing from the guidelines range of 21-27 months of imprisonment.
Although we ordinarily review sentences for reasonableness, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), because Owen did not object to the unreasonableness of his sentence in the district court, review is for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Given Owen's extensive criminal record, the district court did not err, plainly or otherwise, by upwardly departing based upon its finding that Owen's criminal history category substantially under-represented the seriousness of his criminal history or the likelihood that he would recidivate. See U.S.S.G. 4A1.3(a)(1); United States v. Simkanin, 420 F.3d 397, 418 n. 24 (5th Cir. 2005) (affirming an upward departure based upon the defendant's likelihood to recidivate). This court has previously upheld comparable, and even greater, departures than the one here at issue. See United States v. Smith, 417 F.3d 483, 492-93 (affirming upward departure from 41 months to 120 months of imprisonment); United States v. Rosogie, 21 F.3d 632, 633-34 (5th Cir. 1994) (affirming upward departure from 30-37 month guidelines range to 150 months of imprisonment). We similarly conclude that the degree of departure was not unreasonable in this case.
AFFIRMED.