UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4561
REGINALD JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-02-110-FO)
Submitted: February 11, 2004
Decided: March 15, 2004
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Stephen C. Gordon, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JONES
OPINION
PER CURIAM:
Reginald Jones appeals from the 137-month sentence imposed by
the district court following his guilty plea to bank robbery, 18 U.S.C.
§ 2113(a) (2000). He contends that, although he waived his right to
appeal his sentence, the district court’s upward departure from the
sentencing range is excepted from this waiver.
In his written plea agreement, Jones waived his right to appeal
"whatever sentence is imposed on any ground, including any appeal
pursuant to 18 U.S.C. § 3742." However, during the plea hearing pur-
suant to Fed. R. Crim. P. 11, the district court mistakenly informed
Jones that he had "reserve[d] only the right to appeal from an upward
departure from the sentencing guidelines established at sentencing."
Jones agreed with this statement. Under these circumstances, we find
that Jones’ waiver of his right to appeal is ineffective as to his right
to appeal from an upward departure. See United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991).
However, Jones does not raise any challenge to the upward depar-
ture. He cites to no errors in the sentencing proceeding, does not chal-
lenge the district court’s methodology or reasons for departing or the
extent of the departure, and does not in any way challenge the validity
of the 137-month sentence imposed. By failing to raise any issues for
review, Jones has waived review of his sentence. See Fed. R. App. P.
28(a)(6); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999) (noting that issues not briefed or argued on appeal are
deemed abandoned).
Moreover, we find that Jones’ sentence was appropriate. An
upward departure is encouraged when the sentencing court concludes
that the defendant’s "criminal history category does not adequately
reflect the seriousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other crimes." U.S. Sentenc-
ing Guidelines Manual, § 4A1.3, p.s. (2002); see United States v. Bel-
lamy, 264 F.3d 448, 456 (4th Cir. 2001), cert. denied, 534 U.S. 1143
(2002).
UNITED STATES v. JONES 3
Here, the district court found that the seriousness of Jones’ criminal
history and his likelihood of recidivism were under-represented by
criminal history category VI. Noting the "extended nature of [Jones’]
criminal history," the court properly moved "incrementally down the
sentencing table to the next higher offense level in Criminal History
Category VI until it [found] a guideline range appropriate to the
case." USSG § 4A1.3. The sentencing court considered and found that
each of the guideline ranges below offense level 25 were not appro-
priate for Jones’ case.
We find that the district court has complied with the requirement
that the sentencing court state the reasons for departure with specific-
ity in the written order of judgment and commitment. We also find
that the district court’s departure was based on permissible grounds.
See 18 U.S.C.A. § 3742(e); USSG § 4A1.3. Additionally, we find no
abuse of discretion in the district court’s determination of the degree
of departure. 18 U.S.C.A. § 3742(e); United States v. Gonzales-
Ortega, 346 F.3d 800, 804 (8th Cir. 2003) (reviewing extent of depar-
ture under § 4A1.3 for abuse of discretion).
Accordingly, we affirm Jones’ sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED