UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 99-50135 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEREMY KAPLAN,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Texas, Austin (A-98-CR-193-ALL) ______________________________________________

December 14, 1999

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jeremy Stephen Kaplan, Appellant, appeals from the sentence

imposed subsequent to his plea of guilty to one count of

communicating threats by mail, in violation of

, and

one count of communicating threats by interstate telephone call, in

violation of

. Kaplan contends the district court

erred by imposing an upward departure pursuant to policy statements

§§ 5K2.3 and 5K2.8 of the Sentencing Guidelines, for extreme

psychological injury and extreme conduct. He further asserts the

district court erred by sentencing him under the 1998 Sentencing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Guidelines, as opposed to the 1995 version, as his offense was

committed in the earlier year. Finally, Kaplan contends the

district court erred by imposing a special condition of supervised

release forbidding him from having any contact with his sister.

Upon careful review of the record and the briefs, and having

considered the arguments presented by counsel, we find no abuse of

discretion in the imposition of the upward departure due to the

extreme psychological injury caused to Kaplan’s victims and the

extreme conduct involved in his offense. Further, we find that the

district court did not commit plain error by sentencing Kaplan

under the 1998 Sentencing Guidelines, as the sentence imposed

reflects an upward departure to the statutory maximum of sixty

months - the same under both sets of Guidelines. Finally,

reviewing under the plain error standard as Kaplan failed to object

below, we find no error in the imposition of the special condition

of supervised release forbidding Kaplan from contacting his sister.

Accordingly, the sentence imposed by the district court is

AFFIRMED.

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