IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40202 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID GARCIA RUIZ, also known as Davis Batis,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (C-99-CR-318-1)

September 29, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Davis Garcia Ruiz contests the upward-departure from the

Sentencing Guidelines imposed following his guilty-plea conviction

for unlawful possession of a firearm by a convicted felon. He

claims the district court abused its discretion by basing the

departure on old misdemeanor convictions, dismissed charges

unrelated to the instant offense of conviction, and a prior

conviction for unauthorized use of a vehicle. And, he asserts, for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the first time on appeal, that the district court did not

adequately explain the extent of the departure.

The district court determined that the upward departure was

appropriate because Ruiz’s criminal history category VI

inadequately reflected the seriousness of his criminal background

and the likelihood of recidivism. See U.S.S.G. § 4A1.3, p.s.

Ruiz’s adjusted criminal history score of 14 placed him in a

criminal history category VI. Not considered in that computation

were Ruiz’s prior convictions for disorderly conduct, unlawful

carrying of a weapon, criminal mischief, and failure to identify to

a police officer. Additionally, he had prior arrests for assault,

criminal mischief, evading arrest, and disorderly conduct – charges

that were dismissed as a result of his pleading guilty to other

offenses.

Ruiz maintains that the district court improperly treated as

“serious dissimilar, criminal conduct”, U.S.S.G. § 4A1.2 comment 8,

his prior uncounted conviction for criminal mischief for damaging

a screen door and wall while intoxicated. Even if this were in

error, Ruiz would not be entitled to relief because the district

court provided other valid reasons justifying the departure. See

United States v. Kay,

(5th Cir.), cert. denied,

(1996).

Ruiz also asserts that, as a ground for departure, the

district court improperly relied on his arrest record. The court,

however, relied on more than the arrest record and explicitly

considered, among other things, the violent nature of the conduct

for which Ruiz was previously arrested. See § 4A1.3, p.s.

2 Ruiz contends that the district court erred in classifying his

unauthorized use of a vehicle (UUV) conviction as a crime of

violence. After he filed his appeal brief, our court decided the

risk to persons UUV poses makes it categorically a crime of

violence under § 4B1.2. See United States v. Jackson,

(5th Cir. 2000). With the inclusion of the UUV

conviction, Ruiz’s crime carried a base offense level of 24,

pursuant to § 2K2.1(a)(2), which was four levels greater than the

base offense level calculated by the presentencing report.

Therefore, the district court did not abuse its discretion in

departing upward three offense levels based, in part, on its belief

that Ruiz’s UUV conviction was a crime of violence.

Finally, we review only for plain error Ruiz’s contention, for

the first time on appeal, that the district court failed to explain

adequately the extent of the departure. “[T]he district court

[must] consider each intermediate adjustment and state that it has

done so, and explain why the guideline category is inappropriate

and why the category chosen is appropriate. Ordinarily such

explanation will make clear, either implicitly or explicitly, why

the intermediate adjustments are inadequate”. United States v.

Daughenbaugh,

(5th Cir.) (footnote omitted), cert.

denied,

(1995). In arriving at the sentence imposed,

the district court concluded that Ruiz’s persistent criminal

history of violence required a three-level upward adjustment to his

offense level. There was no plain error.

In that the decision to depart upward was not an abuse of

discretion, see United States v. Alford,

(5th

3 Cir.), cert denied,

(1998), and in that the district

court did not plainly err in explaining the extent of that

departure, see id., the judgment is

AFFIRMED.

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