Summary Calendar UNITED STATES OF AMERICA v. Jerry Jerome Gray

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30074
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERRY JEROME GRAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CR-132-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jerry Jerome Gray pleaded guilty, pursuant to a written plea agreement,
to possession of a firearm as a convicted felon. Gray’s presentence report (PSR)
recommended a guidelines range of 51 to 63 months of imprisonment, but the
district court departed upward three levels and sentenced Gray to 87 months in
prison, three years of supervised release, and a $100 special assessment. Gray
now appeals his sentence.
United States Court of Appeals
Fifth Circuit
F I L E D
January 8, 2008
Charles R. Fulbruge III
Clerk

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Gray argues that the district court violated FED. R. CRIM. P. 32(h) when
it did not notify him of its intent to upwardly depart. Gray did not raise this
issue in the district court, so our review is for plain error only. See United States
v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir. 2007), petition for cert. filed (Apr.
18, 2007) (No. 06-1381). The potential for a departure based on Gray’s under-
represented criminal history was noticed in Gray’s PSR, which is sufficient
notice under Rule 32. Gray has not demonstrated plain error with respect to
this issue.
Gray also argues for the first time on appeal that the district court failed
to provide specific written reasons for the departure. The district court did
provide a written Statement of Reasons. Gray has failed to demonstrate plain
error with respect to this issue. See United States v. Gore, 298 F.3d 322, 324–25
(5th Cir. 2002).
Gray argues that his sentence is unreasonable because there was no
reliable information, outside of that contained in the PSR, to justify the upward
departure. Gray did not argue in the district court that there was no reliable
information to justify the departure. Our review is therefore for plain error.
United States v. Hernandez-Martinez, 485 F.3d 270, 272 n.1 (5th Cir.), cert.
denied, 128 S. Ct. 325 (2007). Gray did not object to the PSR, did not present
rebuttal evidence, and has not demonstrated that any information contained in
his PSR is untrue. The district court was free to adopt the PSR in determining
that Gray’s criminal history warranted an upward departure. See United States
v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006). Gray has not demonstrated plain
error with respect to this issue.
Gray also contends that the extent of the departure was unreasonable
because it increased his sentence by as much as three years. Under U.S.S.G.
§ 4A1.3, an upward departure may be warranted “[i]f reliable information
indicates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or the

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likelihood that the defendant will commit other crimes.” Thus, Gray’s sentence
is a “guideline sentence,” and the extent of the departure is reviewed for abuse
of discretion. See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The
extent of the departure, a 38 percent increase over Gray’s maximum guideline
sentence, was not an abuse of discretion. See United States v. Zuniga-Peralta,
442 F.3d 345, 346–48 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006); United
States v. Simkanin, 420 F.3d 397, 403, 414–19 (5th Cir. 2005). The judgment of
the district court is AFFIRMED.

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