IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50304 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD THOMAS GARY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC Nos. A-93-CR-161 and A-97-CR-137 -------------------- April 13, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Richard Thomas Gary (“Gary”) has appealed the district

court’s judgment sentencing him following: (1) the revocation of

the supervised release term imposed for his conviction for making

a false statement to influence the action of a bank and (2) his

guilty-plea conviction for theft of mail.

Because Gary’s brief fails to assert an argument challenging

the sentence imposed following the revocation of the supervised

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50304 -2-

release term in his false statement case, Gary’s appeal of that

sentence has been abandoned. See Fed. R. App. P. 28(a)(9)(A);

Yohey v. Collins,

(5th Cir. 1993).

With regard to his sentence for theft of mail, Gary asserts

that the district court failed to adequately explain its reasons

for upwardly departing from the applicable sentencing guideline

range and that the extent of the upward departure was

unreasonable. A district court’s decision to depart from the

sentencing guidelines is generally reviewed for abuse of

discretion. United States v. Ashburn,

(5th Cir.

1994)(en banc). However, since Gary failed to raise his present

arguments below, review is for plain error. See United States v.

Alford,

(5th Cir. 1998).

The district court based its upward departure on the grounds

that Gary’s criminal history category did not adequately reflect

the seriousness of Gary’s past criminal conduct or the likelihood

that Gary would commit other crimes. The district court’s

reasons for departure were acceptable and adequately explained.

See U.S.S.G. § 4A1.3; United States v. Chappell,

(5th Cir. 1993); Ashburn,

. Furthermore, the

extent of the upward departure, from a maximum guideline sentence

of 21 months’ imprisonment to 36 months’ imprisonment, was

reasonable. See

; United States v. Rosogie,

(5th Cir. 1994); United States v. Lambert,

(5th Cir. 1993).

In light of the foregoing, the district court did not err,

plainly or otherwise, in upwardly departing from the applicable No. 99-50304 -3-

guideline range. Ashburn,

. The judgment of the

district court is AFFIRMED.