UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20103 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES E. BROWN,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-00-CR-86-1) _________________________________________________________________ October 15, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

James E. Brown appeals the sentence imposed following his

guilty plea to possession of counterfeit securities. He contends

that the district court abused its discretion in departing upward

pursuant to U.S.S.G. § 4A1.3, which provides for a departure when

the defendant’s criminal history category significantly under

represents his history or the likelihood that he may commit further

crimes.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. To the extent Brown asserts that, during sentencing, the

district court improperly referenced Brown’s 15 prior juvenile

arrests and erroneously stated that Brown was involved as an adult

in grand theft, it is doubtful that Brown preserved this issue.

After the district court pronounced sentence, Brown’s counsel made

two objections: one regarding the fine imposed and the other

asserting the court should have applied a criminal history category

of IV rather than V. In an earlier objection at sentencing to the

upward departure motion, Brown’s counsel contended that the court

should not rely upon Brown’s juvenile offenses (as opposed to

arrests) in considering an upward departure. Brown’s counsel also

filed written objections to the pre-sentence investigation report;

only two were relevant to Brown’s criminal history. The first

asserted the dispositions of Brown’s arrests for grand theft and

assault were not unknown, as alleged in the presentence

investigation report, and that Brown was acquitted of these

charges. The second asserted the information regarding Brown’s 15

prior juvenile arrests was erroneous as, contrary to the pre-

sentence investigation report, Brown did not provide such

information to the Texas Department of Criminal Justice,

Institutional Division.

Arguably, none of these objections properly preserved Brown’s

current assertion regarding the reference by the district judge to

Brown’s juvenile arrests and the assertion by the district judge

2 that the grand theft was committed as an adult. If not properly

preserved this issue would be reviewed only for plain error. See,

e.g., United States v. Maldonado,

(5th Cir.

1995)(applying plain error standard of review where defendant moved

to suppress evidence on different grounds in the district court).

Nevertheless, even if this issue was properly preserved, we would

still affirm Brown’s sentence for the following reasons.

We find no clear error in the district court’s finding that

Brown’s criminal history category under represented the seriousness

of his history, which included adult criminal convictions that were

not counted in computing his criminal history score. See United

States v. Laury,

(5th Cir. 1993) (reviewing for

clear error a finding of fact that a defendant’s “criminal history

category did not adequately reflect the seriousness of his past

criminal conduct”). We also perceive no abuse of discretion in the

court’s decision to depart upward because of Brown’s extensive

criminal history. See

Although, as mentioned previously, the

court referenced prior arrests that may not have resulted in

convictions, such references do not entitle Brown to relief in

light of the valid bases for the upward departure. See United

States v. Kay,

(5th Cir.) (a “sentence may be found

to be reasonable even though one or more of the reasons assigned in

justification of the departure be deemed invalid, provided the

3 remaining reasons suffice to justify the departure”), cert. denied,

(1996).

AFFIRMED

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