United States v. Murray ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20961
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RICARDO SMALLHORN MURRAY
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-249-ALL
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May 20, 2002
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Ricardo Smallhorn Murray was indicted for unauthorized use
of another individual’s name and Social Security number with
intent to commit a state felony offense, in violation of 18
U.S.C. §§ 1028(a)(7) & 2. Murray pleaded guilty and was
sentenced to 78 months’ imprisonment.
On appeal, Murray argues that the district court erred in
accepting his plea because the factual basis did not establish
*
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that this opinion should not be published and is not precedent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. 01-20961
-2-
that his particular unauthorized use of the identification
information “in or affect[] interstate or foreign commerce.”
Because this objection was not raised below, Murray acknowledges
that review is limited to plain error. See United States v.
Marek, 238 F.3d 310, 315 (5th Cir.)(en banc), cert. denied, 122
S. Ct. 37 (2001)). The factual summary stated that Murray had
used this identification information to submit a loan application
to Chase Manhattan Bank and that Murray’s employer was engaged in
interstate commerce. Based on these facts, the district court
did not plainly err in concluding that the jurisdictional element
of the statute was satisfied.
Murray also argues that the district court erred in
departing upward from the applicable guideline range. Because he
failed to object to the departure on the grounds he urges in his
appeal, review is limited to plain error. See United States v.
Alford, 142 F.3d 825, 830 (5th Cir. 1998). Murray first argues
that the district court erred by beginning its upward departure
from an incorrect offense level. Where the plain-error standard
of review is applicable, this court will uphold a defendant’s
sentence if, on remand, the district court could reinstate the
same sentence by relying on a reasonable application of the
sentencing guidelines. Id. Murray was sentenced to 78 months’
imprisonment, within what would have been the correct range had
the district court’s started its departure from the correct
offense level.
No. 01-20961
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Murray argues that the district court erred by considering a
prior state conviction and sentence as a partial basis for upward
departure because that conviction was included in the relevant
conduct used to calculate his base offense level. The district
court plainly erred under United States v. Cade, in which this
court held that “if the district court uses sentences as relevant
conduct, the district court cannot use those same sentences as
the basis of a criminal history category departure under
§ 4A1.3(a).” See 279 F.3d 265, 272 (5th Cir. 2002). However,
because the upward departure was not based on this single prior
sentence, we decline to correct the error because it does not
seriously affect the fairness, integrity, or public reputation of
judicial proceedings. See Alford, 142 F.3d at 830.
Finally, Murray argues that the upward departure was based
in part on prior convictions not included in his criminal history
score because of their age, and that these convictions did not
involve “similar, or serious dissimilar, criminal conduct,” as
required by U.S.S.G. § 4A1.2, comment. (n.8). Because this court
has never clearly explained what is considered “similar, or
serious dissimilar” conduct, the district court could not have
plainly erred by considering these prior convictions as such.
Therefore, Murray’s conviction and sentence are AFFIRMED.