United States v. Ekene

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2006

Charles R. Fulbruge III
Clerk
No. 05-10343
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDMOND NKEM EKENE,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-338-1-P
--------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Edmond Nkem Ekene appeals the sentence imposed following his

guilty-plea conviction for embezzling funds as a bank employee in

violation of 18 U.S.C. §§ 2 and 656. He challenges the district

court’s decision to depart upward from the criminal history

category assigned under the Sentencing Guidelines. Ekene argues

that the decision to depart was unreasonable; that the extent of

the departure intended by the district court was ambiguous; that

the district court failed to properly articulate why it bypassed

*
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this opinion should not be published and is not precedent except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.
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a one-category increase in favor of a two-category departure; and

that the extent of the departure was unreasonable.

We review the district court’s decision to depart and the

extent of the departure for an abuse of discretion. United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The district

court here did not abuse its discretion in issuing an upward

departure. Reliable information in the Presentence Investigation

Report (PSR) indicated that the criminal history category

determined under the Guidelines substantially under-represented

the seriousness of Ekene’s criminal history and the likelihood

that he would commit other crimes. The district court found that

he had committed significant criminal conduct as an adult which

was not reflected in the criminal history category under the

Guidelines. The court did not, as Ekene asserts, merely rely

upon an arrest record. Instead the court relied upon the

description of the criminal conduct obtained from the police

investigation and recounted in the PSR in finding that the

conduct had occurred. Accordingly, the increase was appropriate

under the policy statement in U.S.S.G. § 4A1.3(a). See United

States v. Jones, 444 F.3d 430, 434 (5th Cir.), cert. denied, 126

S. Ct. 2958 (2006).

Next Ekene suggests that the district court mistakenly

departed upward by two categories when it intended a one-category

departure. The district court stated twice that Ekene would be

sentenced with a criminal history of category III, and it
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sentenced him to the highest possible sentence under that

category--a sentence that was not available under criminal

history category II. Accordingly, the district court’s final

determination of Ekene’s criminal history category was

unambiguous.

Ekene also complains that the district court did not

adequately explain why it chose to bypass a one-category

departure in favor of a two-category departure. This court “does

not, however, require the district court to go through a

ritualistic exercise in which it mechanically discusses each

criminal history category it rejects in route to the category it

selects.” United States v. Lambert, 984 F.2d 658, 663 (5th Cir.

1993) (en banc). Where, as here, the district court’s reasons

for the extent of the departure are implicit in its explanation

of why the departure is necessary, it does not err in failing to

explicitly address its reasons for rejecting any intermediate

categories. Id.

A defendant earns a criminal history of category III with

four to six criminal history points, while category II is

designated for defendants with two or three points. U.S.S.G.

Sentencing Table, Chap. 5, Pt. A. The district court recognized

that Ekene should receive three points for each act of felony

credit card fraud he committed, and it found that he fraudulently

obtained one credit card and possessed an additional 39

fraudulent applications upon his arrest. The court did not err
 No. 05-10343
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in failing to expressly state why it did not place Ekene’s

criminal history within category II. See Lambert, 984 F.3d at

663; United States v. McKenzie, 991 F.2d 203, 204-06 (5th Cir.

1993).

In addition, Ekene argues that the extent of the departure

was unreasonable. He argues that a sentence at the high end of

the guidelines sentencing range would have satisfied the factors

under 18 U.S.C. § 3553(a). Ekene received an additional 14

months by virtue of the upward departure. The 14-month departure

was reasonable in order to effectuate the goals of § 3553(a),

i.e., to reflect the seriousness of his criminal conduct; to

promote his respect for the law; to provide just punishment; to

provide adequate deterrence against future criminal conduct; and

to protect the public from further crimes by him. § 3553(a)(2).

The district court found that criminal conduct not reflected in

the guidelines sentencing range demonstrated Ekene’s willingness

to continue identity theft on a grand scale after he had been

caught in the present embezzlement scheme. Accordingly, the

district court did not abuse its discretion, and the sentence was

reasonable. See Smith, 440 F.3d at 707.

Finally, Ekene asserts two issues that are barred under the

waiver provision in his plea agreement. First, he argues that

the district court erred by enhancing his sentence by two levels

because he used sophisticated means to carry out the

embezzlement. Second, he argues that the district court erred by
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imposing the two-level enhancement for his unlawful use of

identification to produce or obtain another means of

identification. Ekene knowingly and voluntarily waived his right

to appeal his conviction and sentence in the plea agreement.

Although he reserved the right to appeal “an upward departure

from the guideline range deemed applicable by the district

court,” the enhancements at issue were not the basis of an upward

departure from the guidelines range. Rather, they were used by

the district court to calculate the applicable guideline range.

When the record indicates that the defendant read and

understood his plea agreement, and he did not question the waiver

of appeal provision, he “will be held to the bargain to which he

agreed, regardless of whether the court specifically admonished

him concerning the waiver of appeal.” United States v. Portillo,

18 F.3d 290, 293 (5th Cir. 1994). Ekene does not allege, and

there is no indication in the record, that his acceptance of the

plea agreement was unknowing or involuntary. The district court

specifically admonished him that he was waiving his rights to

appeal, and Ekene replied that he understood. Accordingly, the

appeal waiver is valid and enforceable. See Portillo, 18 F.3d at

293.

Ekene argues that he did not admit the facts underlying the

enhancements and that he preserved an objection under Blakely v.

Washington, 542 U.S. 296 (2004). However, “an otherwise valid

appeal waiver is not rendered invalid, or inapplicable to an
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appeal seeking to raise a Booker or Fanfan issue (whether or not

that issue would have substantive merit), merely because the

waiver was made before Booker.” United States v. Burns, 433 F.3d

442, 450-51 (5th Cir. 2005).

The judgment of the district court is AFFIRMED.