IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40404 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH A. BARBARIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:01-CR-80-ALL -------------------- October 2, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Joseph A. Barbaria (“Barbaria”) appeals his sentence

following his guilty-plea conviction of wire fraud and bankruptcy

fraud in violation of

and 1343. He argues that

the district court abused its discretion in imposing an upward

departure. Barbaria asserts that his case did not fall outside

of the “heartland” of cases covered by the Sentencing Guidelines,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40404 -2-

so that an upward departure was not warranted and that the

district court did not rely on permissible departure factors.

The district court’s decision to depart from the Guildelines

is reviewed for abuse of discretion. Koon v. United States,

(1996). The factors used by the district court

to justify its departure included Barbaria’s exercise of

management responsibilities over the property, assets, and

activities of businesses used to engage in criminal activities,

the extensiveness of the criminal organization, and the large

number of victims, over 75 individuals and companies, as well as

Barbaria’s persistent abuse of the bankruptcy courts. These

factors are permissible departure factors. See United States v.

Davidson,

(5th Cir. 1993) (affirming departure

where defendant engaged in pervasive criminal scheme); United

States v. Davenport,

(5th Cir. 2002) (affirming

departure based on large number of victims). The district court

also found that Barbaria’s scheme was unusually extensive,

consisting of both a pervasive and unusual abuse of the law and

the judiciary, and thus, the district court properly found that

the case was outside of the “heartland” of the Guidelines. See

United States v. Threadgill,

(5th Cir.

1999). Finally, the departure of three months, which increased

Barbaria’s sentence to the statutory sentence of

and 1343, was reasonable.

AFFIRMED.