FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS March 24, 2009
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-3183
          v.                                              (D. Kansas)
 HARLEY YOAKUM,                               (D.C. No. 2:06-CR-20130-KHV-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.    Introduction

      Defendant-Appellant Harley D. Yoakum pleaded guilty to one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). The district court sentenced him to fifty-one months’

imprisonment, a term that exceeded the high end of the advisory guidelines range

by fourteen months. Yoakum appeals the sentence imposed by the district court,

arguing the court erred in applying an upward departure pursuant to § 4A1.3(a) of

the United States Sentencing Guidelines (“U.S.S.G.”). Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Yoakum’s

sentence.

II.   Background

      Yoakum was charged in a single-count indictment with possessing a

firearm after being convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). Yoakum pleaded guilty to the charge. A Presentence Investigation

Report (“PSR”) was prepared in anticipation of sentencing. Yoakum’s total

offense level was calculated at twelve. His twenty-four criminal history points

placed him in Criminal History Category VI. The resulting advisory guidelines

range was set at thirty to thirty-seven months. The PSR noted Yoakum’s twenty-

four criminal history points were nearly twice the amount necessary to place him

in Criminal History Category VI, a factor the PSR suggested might warrant an

upward departure pursuant to U.S.S.G. § 4A1.3(a)(1).

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       At the original sentencing hearing, the district court indicated it was

considering an upward departure based on Yoakum’s extensive criminal history

and its belief Yoakum refused to acknowledge a history of substance abuse. At

Yoakum’s request, the hearing was continued to May 5, 2005. In the sentencing

memorandum Yoakum filed with the court, he argued many of the crimes used to

compute his criminal history category were “minor in nature” and were committed

while he was a juvenile. The district court heard oral argument on the matter at

the sentencing hearing and departed upward, imposing a fifty-one-month term of

imprisonment.

III.   Discussion

       An upward departure is warranted pursuant to U.S.S.G. § 4A1.3(a)(1) if a

“defendant’s criminal history category substantially under-represents the

seriousness of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes.” The application notes in the sentencing

guidelines explain that an upward departure should be imposed in cases involving

“egregious, serious criminal record[s].” U.S.S.G. § 4A1.3 cmt. n.2(B). This

court reviews upward departures under a unitary abuse of discretion standard,

applying a four-part test to examine:

       (1) whether the factual circumstances supporting a departure are
       permissible departure factors; (2) whether the departure factors relied
       upon by the district court remove the defendant from the applicable
       Guideline heartland thus warranting a departure; (3) whether the


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      record sufficiently supports the factual basis underlying the
      departure; and (4) whether the degree of departure is reasonable.

United States v. Munoz-Tello, 

, 1186 (10th Cir. 2008) (quotation

omitted).

      Yoakum’s appellate challenge is limited to the assertion his criminal

history is not sufficiently egregious or serious to warrant an upward departure

from the advisory guidelines range. He admits he has a large number of criminal

history points, but argues many of those points were imposed for relatively minor

crimes committed when he was a juvenile. He also points to data compiled by the

United States Sentencing Commission indicating defendants with more than

twenty criminal history points do not have higher rates of recidivism than

defendants who barely qualify for inclusion in Criminal History Category VI.

      The district court based the upward departure on the continuous nature of

Yoakum’s criminal history and his failure to “learn[] any lesson at all . . . from

[his] contact with the law enforcement and criminal justice system.” In response

to Yoakum’s argument that none of his criminal history points were awarded “for

crimes of violence,” the court noted Yoakum had “a history of carrying weapons.”

The court then concluded “that a guideline sentence does not adequately capture

[Yoakum’s] likelihood of recidivating or the seriousness of [his] past criminal

involvement.”




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      The record demonstrates the depth and seriousness of Yoakum’s criminal

activity. His criminal history begins at the age of thirteen when he was convicted

of misdemeanor theft. At the time the PSR was prepared in 2008, Yoakum was

twenty-two years old and had amassed twenty-four criminal history points, nearly

double the thirteen points necessary to place him in the highest Criminal History

Category. The PSR reveals Yoakum’s criminal behavior continued unabated

despite several periods of incarceration. Further, the nature of the crimes became

increasingly serious. While many of Yoakum’s convictions were for

misdemeanor property crimes, other convictions involved more weighty matters.

At age fourteen, Yoakum was convicted of an offense involving drugs; by age

nineteen he had two felony theft convictions; and at age twenty he was convicted

of, inter alia, criminal possession of a firearm.

      The record also reveals a high likelihood of recidivism. Yoakum incurred

at least one new conviction or arrest for each and every year of his life, beginning

at age thirteen. During that period, he was convicted of twelve different crimes

and sentenced to a term of incarceration in each case. Yet he continued with his

criminal behavior, frequently being arrested while on probation for an earlier

crime or, in two instances, committing a criminal act while incarcerated.

      The record provides solid support for the district court’s conclusion that

Yoakum’s extensive, escalating criminal history and clear proclivity for




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recidivism support an upward departure under § 4A1.3(a)(1). The district court

did not abuse its discretion when it imposed the upward departure.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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