IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50860
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARWIN SHASHOAN RICE, also known as Darwin S. Rice,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CR-43-1
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June 17, 1998
Before DAVIS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Darwin Shashoan Rice appeals from his sentence for two
counts of robbery of a federally-insured credit union using a
dangerous weapon. As part of his plea agreement, Rice waived his
right to appeal his sentence for any reason, except regarding any
upward departure pursuant to U.S. Sentencing Guidelines
(“Guidelines”) § 5K2.0. As a review of the transcript of the
Fed. R. Crim. P. 11 hearing indicates that Rice’s waiver was both
informed and voluntary, we will uphold Rice’s waiver as valid.
*
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that this opinion should not be published and is not precedent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. 97-50860
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See United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir.
1994). Therefore, although Rice has raised six points of error
on appeal, we will only review his arguments relating to the
district court’s upward departure.
Rice argues that the district court erred in upwardly
departing from the Guidelines and increasing his criminal history
category from four to six. The reasons for the upward departure
articulated by the district court are findings of fact that this
court reviews for clear error. United States v. Pennington, 9
F.3d 1116, 1118 (5th Cir. 1993). However, the district court’s
decision to upwardly depart from the Guidelines is reviewed for
abuse of discretion. United States v. Ashburn, 38 F.3d 803, 807
(5th Cir. 1994) (en banc).
The district court upwardly departed, based on its finding
that the criminal history category failed to adequately reflect
Rice’s actual dangerousness to society. This is a valid basis
for an upward departure. See U.S.S.G. § 4A1.3; Ashburn, 38 F.3d
at 809; United States v. Lambert, 984 F.2d 658, 660 (5th Cir.
1993)(en banc). In light of the large number of crimes committed
by Rice that were unable to be included in the calculation of his
criminal history score, the district court’s finding was not
clearly erroneous. See Pennington, 9 F.3d at 1118. In addition,
the district court’s upward departure of two criminal history
categories was reasonable under these circumstances. See
Ashburn, 38 F.3d at 806, 809 (upward departure from criminal
No. 97-50860
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history category of two to six upheld, based on several
unconvicted previous offenses).
Accordingly, the district court’s decision to upwardly
depart from the Guidelines was not an abuse of discretion, and is
AFFIRMED. See Lambert, 984 F.3d at 663.