IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11452
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CHARLES HOWELL, also known as Jay Howell,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-473-1
--------------------
June 20, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
James Charles Howell appeals the sentence imposed following
his guilty-plea conviction for possession of an unregistered
firearm in violation of 26 U.S.C. §§ 5845(a), 5861(d), and 5871.
The Government argues that Howell knowingly and voluntarily
waived his right to appeal his sentence as part of his plea
agreement. Howell argues that the waiver provision does not bar
this appeal because it allows him to appeal an upward departure.
He argues that he is challenging the district court’s imposition
*
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that this opinion should not be published and is not precedent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. 01-11452
-2-
of a partly consecutive sentence which was the functional
equivalent of an upward departure.
Howell has not shown that the sentence imposed by the
district court was the result of an upward departure. The
district court sentenced Howell to 51 months, a sentence within
the applicable guideline range of 41 to 51 months. The district
court explained that it was imposing a partly consecutive
sentence because the state felony offense was only partly taken
into consideration in calculating the applicable guideline range
for the firearm offense. If the district court had fully
considered the state narcotics offense by applying U.S.S.G.
§ 2K2.1(c) in calculating Howell’s offense level, Howell would
have faced a guideline sentencing range of 78 to 97 months of
imprisonment. Because the district court did not fully take the
state narcotics offense into consideration, U.S.S.G. § 5G1.3(c)
applied to the calculation of Howell’s sentence.
Section 5G1.3(c) authorized the district court to impose a
sentence “to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.”
Therefore, Howell’s sentence was not the result of an upward
departure from the applicable guideline range. Because the
district court did not depart upward, the waiver-of-appeal
provision in the plea agreement is applicable. The record
indicates that Howell knowingly and voluntarily waived the right
to appeal his sentence. See United States v. Henderson, 72 F.3d
463, 464-65 (5th Cir. 1995); see also United States v. Melancon,
No. 01-11452
-3-
972 F.2d 566, 567 (5th Cir. 1992). Therefore, Howell may not
appeal his sentence, and the appeal is DISMISSED.