IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10955
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DANIEL SALING, JR.,
also known as Robert Salines,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 7:98-CR-8-2
_________________________________________________________________
May 18, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Robert Daniel Saling, Jr., appeals his conviction and sentence
following his plea of guilty to tampering with a witness under 18
U.S.C. §§ 1512(b) and 2. Saling asserts that the government
breached the plea agreement by moving for an upward departure. An
upward departure is not a “prosecution” such that the plea
provision forbidding the government from undertaking “future
prosecution” for related acts would be violated. Saling also
*
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this opinion should not be published and is not precedent except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.
contends that because the plea agreement contained a provision
stating that his sentence would be imposed under the Sentencing
Guidelines, an upward departure is not a sentence under the
guidelines and constitutes a breach of the agreement. This
argument is directly foreclosed by United States v. Ashburn, 38
F.3d 803, 808 (5th Cir. 1994)(en banc).
Saling asserts that the court abused its discretion in denying
his motion to withdraw his guilty plea. He asserts that the court
erroneously found that two of the relevant factors did not apply to
him. Even assuming Saling had protested his innocence, that factor
alone was insufficient to permit withdrawal from the guilty plea.
See United States v. Bond, 87 F.3d 695, 701 (5th Cir. 1996).
Saling also maintains that his motion to withdraw was timely
because he was unaware that the government would move for an upward
departure. Saling’s motion was filed the morning of the sentencing
hearing and over two months after the government filed its motion.
Saling has not shown that the district court abused its discretion
in denying his motion to withdraw. See United States v. Brewster,
137 F.3d 853, 857 (5th Cir.), cert. denied, 525 U.S. 908 (1998).
Saling finally contends that the district court erred in
imposing an upward departure for obstruction of justice. Saling
has waived his right to appeal his sentence except in certain
limited circumstances. This waiver was made knowingly and
2
voluntarily. See United States v. Portillo, 18 F.3d 290, 292-93
(5th Cir. 1994). Although the district court informed Saling at
sentencing that he had a right to appeal his sentence, any
confusion arising at sentencing would have no effect on the
validity of a guilty plea. United States v. Melancon, 972 F.2d
566, 568 (5th Cir. 1992).
A plain reading of the sentencing transcript reveals that the
court did not impose an upward departure for obstruction of
justice; it instead granted an implicit objection raised by the
Government and applied the two-point enhancement for obstruction of
justice permitted under U.S.S.G. § 3C1.1. Such an enhancement is
not appealable under an upward-departure exception to a waiver-of-
appeal provision. See United States v. Gaitan, 171 F.3d 222, 224
(5th Cir. 1999). The district court did impose an upward departure
based upon Saling’s violent and extensive criminal history. An
exception to the waiver provision exists for upward departures to
the extent they depart from the “guideline range deemed most
applicable by the sentencing court.” However, Saling cannot
challenge this upward departure because it was not outside the
guideline range the sentencing court found “most applicable.”
Saling has shown no error by the district court on appeal. His
conviction and sentence are
A F F I R M E D.
3