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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-1495
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARCHIE ISIBORE EMMANUEL ROSOGIE,
a/k/a Cedric Demone Nelson, Dosa Archie Rosogie,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
(May 16, 1994)
Before DAVIS, JONES, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
BACKGROUND
Appellant Rosogie pleaded guilty to possession of stolen mail,
unlawfully remaining in the United States after deportation, and
making a false statement on a passport application. In
consideration for the plea, the Government dismissed the eight
remaining counts of the indictment against him. The district court
adopted the factual findings in the presentence report and found a
total offense level of 12 (after affording him a one-level
reduction for acceptance of responsibility) and a criminal category
of VI (based on 23 criminal history points). The offense level and
criminal history category resulted in a sentencing guideline range

of 30 to 37 months. The district court departed upward and imposed
a sentence of 150 months imprisonment, 30 months supervised
release, restitution of $14,440.95, and a mandatory special
assessment.
On appeal, Rosogie argues that the court abused its discretion
in upwardly departing from the sentencing guidelines; the court
erred in calculating the loss amount used to determine his offense
level; the court abused its discretion in awarding restitution; the
district judge erred in not recusing himself; trial counsel gave
ineffective assistance; and government officials seized property
from Rosogie and his wife without probable cause. We affirm.
DISCUSSION
I. Upward Departure
Appellant contends that the district court abused its
discretion in departing upward and gave inadequate reasons for
departure. The district court may depart from the sentencing
guidelines due to aggravating or mitigating circumstances not
considered or inadequately considered by the guidelines. U.S.S.G.
§ 4A1.3. We review the decision to depart for abuse of discretion.
United States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993). Under
this standard, a departure will be upheld if (1) the district court
provided acceptable reasons for the departure, and (2) the extent
of the departure was reasonable. Id. The reasons given by the
trial court are findings of fact, which we review for clear error.
Id.
Appellant's 12 offense level and 23 criminal history points,
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which yielded a criminal history category of VI, resulted in a
guideline range of 30 to 37 months. See U.S.S.G. § 5A (sentencing
table). The district court departed by adding one offense level
for each criminal history point above the thirteen points required
to reach category VI, and assessing four additional levels for the
following reasons. Appellant's criminal history points were almost
double those necessary for category VI. Appellant used twenty-six
different aliases, had been convicted of more than ten crimes in a
ten-year period, had been imprisoned in three state systems and had
been deported twice. Appellant's deceptive, fraudulent offenses
and criminal history were of the kind and to the degree that were
not adequately taken into consideration by the sentencing
guidelines. Furthermore, Appellant presented a high risk of
recidivism and nothing short of incarceration (not even
deportation) stopped him from committing additional crimes. On
this record, these reasons are adequate and the extent of departure
is reasonable and not an abuse of discretion.
II. Loss Calculation
The presentence report, adopted by the district court,
calculated a victim loss attributable to Appellant's crime of
$75,134.45. The loss calculation of over $70,000 increased
Appellant's offense level by eight points. See U.S.S.G. §
2B1.1(b)(1)(I). Appellant contends that the district court erred
in computing his victim loss because the presentence report
reflected a total loss of $71,892.97, not $75,134.45. Our review
of the presentence report reveals that Appellant's contention is
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without merit. Furthermore, even if Appellant were correct, the
error would be harmless because the loss calculation would still be
over $70,000.
Next, Appellant argues that the district court erred in
including a stolen U.S. Treasury check, in the amount of $8,814.
as relevant conduct under § 1B1.3(a)(1)(A) and (B) of the
guidelines. Appellant argues that because the check is the basis
of a pending state prosecution against him, it should not be
included as relevant conduct in the current federal proceeding. We
disagree.
We have not previously addressed the propriety of using as
relevant conduct information from related pending state charges.
We have determined that a sentencing court can use facts relating
to a charge for which a defendant has been acquitted in determining
an appropriate sentence. United States v. Juarez-Ortega, 866 F.2d
747, 749 (5th Cir. 1989). Additionally, it is clear that if an
individual is separately punished for conduct that violates the
laws of dual sovereigns there are no double jeopardy issues raised
thereby. United States v. Moore, 958 F.2d 646, 650 (5th Cir.
1992), cert. denied, 114 S.Ct. 647 (1993). The Second Circuit has
considered the issue raised by Appellant and has ruled that
information from a pending state prosecution on a related offense
may be used as relevant conduct. United States v. Caceda, 990 F.2d
707, 709 (2d Cir.), cert. denied, 114 S.Ct. 312 (1993). We agree
and adopt that rule for this Circuit.
III. Other Issues
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We have carefully considered the other issues raised by
Appellant and find them to be totally without merit and unnecessary
to discuss.
CONCLUSION
For the foregoing reasons, the district court decision is
AFFIRMED.
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