United States v. Aderholt ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20903
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH LEE ADERHOLT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-93-163-2
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July 29, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Kenneth Lee Aderholt appeals his sentence, given by the
district court on remand from this court. Aderholt pleaded
guilty to conspiracy to commit mail fraud and aiding and abetting
mail fraud.
Aderholt argues, for the first time on appeal, that the
district court erred by failing to consider the two offenses as
one offense pursuant to the grouping scheme of U.S.S.G. § 3D2.1
*
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that this opinion should not be published and is not precedent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. 96-20903
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and imposing a sentence that was equal to the statutory maximum
sentence for a single offense, rather than departing upward from
the guidelines and imposing two consecutive statutory-maximum
sentences.
The district court retains discretion to impose a concurrent
or consecutive sentence when the district court is departing from
the guidelines if the departure itself is appropriate. See
United States v. Martinez, 950 F.2d 222, 226 (5th Cir. 1991);
United States v. Miller, 903 F.2d 341, 346-49 (5th Cir. 1990). A
sentencing court may depart upward from the guidelines whenever
it finds that an aggravating circumstance exists that was not
adequately taken into consideration by the guidelines. 18 U.S.C.
§ 3553(b). United States v. Anderson, 5 F.3d 795, 803 (5th Cir.
1993).
The district court properly based its departure on § 5K2.1
because of the death that resulted from the mail fraud,
articulated sufficient reasons for the upward departure, and
imposed a reasonable sentence. See id. Aderholt cannot
demonstrate any error, much less plain error that affected his
substantial rights, by the district court’s imposition of
consecutive sentences against him. See United States v. Olano,
507 U.S. 725, 231-37 (1993).
AFFIRMED.