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this opinion should not be published and is not precedent except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.