Vacated by Supreme Court, April 25, 2005


                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4297



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


ALAN TODD SLOAN,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-96)


Submitted:   October 1, 2004                 Decided:   December 9, 2004


Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Alan Todd Sloan pled guilty to bank robbery, 18 U.S.C.

§§ 2113(a), 2 (2000).    The district court departed upward from the

guideline range pursuant to U.S. Sentencing Guidelines Manual

§ 4A1.3, p.s. (2003), and sentenced Sloan to a term of 188 months

imprisonment.    Sloan appeals his sentence, arguing that Blakely v.

Washington, 

(2004), applies to the district court’s

decision to depart upward and that § 4A1.3 is unconstitutional

under Blakely.     He further contends that, if Blakely does not

apply, the district court abused its discretion in departing upward

and sentencing him as a de facto career offender.     We affirm.

            Sloan’s criminal history was replete with crimes of

violence.    Between July 9 and September 24, 1992, Sloan committed

a total of nine robberies in Pennsylvania.      He was convicted of

four robberies, three of which were consolidated for sentencing.*

Because all these offenses were treated by the probation officer as

part of a common scheme or plan, i.e., as related cases, USSG

§ 4A1.2, comment. (n.3), Sloan fortuitously did not qualify for

sentencing as a career offender under USSG § 4B1.1.         See USSG

4B1.2(c).

            Sloan received three criminal history points for his ten-

year sentence for bank robbery under USSG § 4A1.1(a), and one point



     *
      Five counts of bank robbery were dismissed under a plea
agreement.

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for each sentence imposed for the remaining three robberies.                   USSG

§   4A1.1(f).         Including   the    points   awarded     for     other    prior

sentences, Sloan had a total of nine criminal history points, which

placed him in category IV. The recommended guideline range was 77-

96 months.

            At the sentencing hearing, Sloan’s attorney acknowledged

that an upward departure was appropriate under § 4A1.3.                          He

recommended a departure to category VI and a sentence of 125 months

imprisonment.     The district court decided to depart upward in part

because it believed, mistakenly, that Sloan’s three sentences for

robberies that were consolidated for sentencing in July 1993

received no criminal history points because they were related

cases,   when    in    fact   each     was   awarded    one   point    under   USSG

§ 4A1.1(f).

             The court noted that Application 3 to § 4A1.2 recognizes

that, in some cases, the definition of related cases may be overly

broad    and    may     “result   in     a   criminal    history      score    that

underrepresents the seriousness of the defendant’s criminal history

and the danger that he presents to the public.”                 The court found

that this was true of Sloan’s three supposedly unscored crimes of

violence.       The court found that Sloan was a de facto career

offender and therefore departed upward from category IV to category

VI and from offense level 24 to offense level 32.                       The court

imposed a sentence of 188 months.


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            On appeal, Sloan first argues that his sentence must be

vacated    under   Blakely   because      the   district      court    engaged    in

unconstitutional fact finding when it departed upward, and that

§ 4A1.3 is unconstitutional under Blakely because it permits

judicial fact finding to increase the statutory maximum sentence.

Because    we    recently   held   that    Blakely    “does      not   affect    the

operation of the federal sentencing guidelines,” United States v.

Hammoud, 

, 

, at *28 (4th Cir. Sept. 8,

2004) (en banc), we conclude that neither of these contentions has

merit.

            Alternatively, Sloan argues that, if Blakely does not

apply, the district court abused its discretion in departing by

treating him as a de facto career offender.               A sentencing court may

depart    from   the   guideline   range    only     if    the   court   finds   an

aggravating or mitigating factor of a kind, or to a degree, not

adequately considered by the Sentencing Commission.                    18 U.S.C.A.

§ 3553(b) (West Supp. 2004) (setting out general principles for

departures and special considerations for child crimes and sexual

offenses); Koon v. United States, 

, 98 (1996).                   As of

April 30, 2003, the Prosecutorial Remedies and Tools Against the

Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L.

No. 108-21, 117 Stat. 650, 670 (amending 18 U.S.C. § 3742(e),

(e)(3)), requires a reviewing court to review certain departures de

novo.     The appeals court must review de novo whether the district


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court failed to provide a written statement of its reasons for

departing, 18 U.S.C.A. § 3742(e)(3)(A) (West Supp. 2004), and

whether the departure was based on a factor that (1) does not

advance the objectives set forth in 18 U.S.C.A. § 3553(a)(2) (West

Supp. 2004), (2) is not authorized by § 3553(b), or (3) is not

justified      by      the     facts      of    the   case.        18      U.S.C.A.

§ 3742(e)(3)(B)(i)-(iii) (West Supp. 2004).                 If the departure is

justified,     the     appeals    court    must   review    the   extent    of   the

departure deferentially. See United States v. Davis, 

,

188 n.3 (4th Cir. 2004), petition for cert. filed, Sept. 15, 2004

(No. 04-6377); see also 18 U.S.C.A. § 3742(e)(3)(C) (West Supp.

2004).

              An upward departure pursuant to § 4A1.3 is encouraged if

the   court    finds    that     the   criminal   history     category   does    not

adequately represent the defendant’s past criminal conduct.                      The

district court’s determination that an encouraged factor is not

already accounted for in the guideline is reviewed de novo. United

States v. Rybicki, 

, 757 (4th Cir. 1996) (citing 

).

              In this case, although the district court mistakenly

stated that three of Sloan’s prior crimes of violence received no

criminal history points because they were related, when in fact

each of the 1992 hotel and store robberies was awarded one criminal

history point, the record amply supports the district court’s


                                        - 5 -
decision to depart.           As Sloan concedes in his opening brief, he

would have been a career offender if there had been an intervening

arrest in his series of robberies in 1992, or if his 1985 burglary

conviction      were    not   outside    the    applicable     time    period   for

sentences of less than a year and a month, see USSG § 4A1.2(e)(2).

            Moreover, Sloan would have been a career offender if he

had been prosecuted separately for any of the five bank robberies

he committed in 1992 for which charges were dismissed under his

plea   agreement       relating   to    the    sixth   bank   robbery.     United

States v. Harrison, 

, 118 (4th Cir. 1995) (“district

court may sentence a defendant as a de facto career offender when

he has committed two crimes that would qualify as predicate crimes

for    career   offender      status,    but    for    some   reason   cannot    be

counted.”).      Sloan’s criminal history included more than the two

crimes of violence necessary to qualify him for career offender

status.    Therefore, we conclude that the district court did not

abuse its discretion in deciding to depart or in treating Sloan as

a de facto career offender.

            We therefore affirm the sentence imposed by the district

court.    We deny as moot the government’s motion to place this case

in abeyance for Hammoud, and we dispense with oral argument because

the facts and legal contentions are adequately presented in the




                                        - 6 -
materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




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