                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4069



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DANIELLE BLAKE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-01323)


Submitted:   January 31, 2008              Decided:   July 23, 2008


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas E. Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Danielle Blake pled guilty, pursuant to a written plea

agreement, to one count of using and carrying a firearm during and

in relation to a drug trafficking crime, in violation of 18

U.S.C.A. § 924(c)(1)(A)(iii) (West 2000 & Supp. 2007).                         At the

sentencing hearing, pursuant to the terms of the plea agreement,

the Government moved for an upward departure from the advisory

guidelines sentence of 120 months’ imprisonment.                        The district

court   granted    the   motion      and   sentenced    Blake      to   300   months’

imprisonment.     Blake timely appealed his sentence.               The Government

moved to dismiss based upon a waiver of appellate rights in the

plea    agreement.       For   the    reasons    that    follow,        we   deny   the

Government’s motion to dismiss and affirm Blake’s sentence.

            A defendant may waive the right to appeal if that waiver

is knowing and intelligent.          United States v. Blick, 408 F.3d 162,

169 (4th Cir. 2005).       To determine whether a waiver is knowing and

intelligent,      we   examine    the      “totality    of   the    circumstances,

including the experience and conduct of the accused, as well as the

accused’s educational background and familiarity with the terms of

the plea agreement.”       United States v. General, 278 F.3d 389, 400

(4th Cir. 2002) (internal quotation marks and citation omitted).

The question of whether a defendant validly waived his right to

appeal is an issue of law that we review de novo.                  United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992).


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              Rule 11 specifically imposes upon a district court the

duty to inform the defendant and determine that he understands “the

terms of any plea agreement provision waiving the right to appeal

or   to    collaterally      attack     the   sentence.”     Fed.     R.    Crim.   P.

11(b)(1)(N).         Here, the district court failed to specifically

discuss      with    Blake   the   appeal     waiver    provision     in    his   plea

agreement.       The only reference to that provision occurred during

the prosecutor’s summary of the entire agreement.                   Although Blake

stated he had discussed the agreement with his attorney before

signing it, and his initials appear next to the waiver provision in

the written agreement, the hearing transcript does not demonstrate

the degree to which Blake understood, if at all, the importance of

the waiver of appellate rights.

              Blake’s background, education, experience and conduct

before the district court, however, indicate that Blake did not

understand the significance of the waiver. The PSR noted Blake had

only an eighth grade education and no prior experience in the

criminal justice system.           The probation officer noted Blake was a

poor historian, often did not understand the questions being asked,

and was confused.        The report of Blake’s competency test indicated

Blake      was   a   “low    functioning       person   in   terms     of    overall

intellectual ability,” although it also suggested Blake may have

been      exaggerating      cognitive    defects   in    order   to   avoid       legal




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consequence.       Finally,      Blake’s      brief    allocution   before      the

sentencing judge was nearly unintelligible.

              In light of Blake’s demonstrated mental deficiencies,

and because the district court did not specifically question Blake

about the waiver, we find that the totality of the circumstances

indicates Blake’s appeal waiver was not knowing and voluntary.

Accordingly, we deny the Government’s motion to dismiss based upon

the waiver.

           Turning to the sentencing challenge, we review Blake’s

sentencing for abuse of discretion. See Gall v. United States, 128

S. Ct. 586, 597 (2007).            First, we examine the sentence for

significant procedural error.            Id.      Assuming the decision was

procedurally sound, we then consider the substantive reasonableness

of the sentence.         Id.    In doing so, we take into account the

totality   of    the    circumstances,        including   the    extent    of   any

deviation from the guidelines range, but we must also “give due

deference to the district court’s decision that the [28 U.S.C.]

§ 3553(a) factors, on a whole, justify the extent of the variance.”

Id.   Even if we would have reached a different sentencing result on

our own, this fact alone is insufficient to justify reversal of the

district court.        Id.

           The   parties       agree   that    the    district   court    properly

calculated the guidelines sentence of 120 months’ imprisonment.

Blake argues that the district court procedurally erred by failing


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to   adequately     justify    a   sentence      two   and    one-half      times       the

guidelines range, particularly when he had no criminal history,

realized no benefit for his acceptance of responsibility, and was

recognized by the district court as being merely a “follower.”

            In     considering     the    Government’s        motion       for       upward

departure, the district court first found that the circumstances of

the charged offense resulted in significant physical injury.                           Such

significant      physical     injury     supported     an    increase      of    Blake’s

sentence    above     the    Guidelines     range.          See    U.S.     Sentencing

Guidelines Manual (“USSG”) (2005) § 5K2.2.                    Notwithstanding the

fact that Blake was not the shooter, the victim’s injuries alone

may be sufficient to support Blake’s 300-month sentence under the

law of this Court.       See United States v. Scheetz, 293 F.3d 175, 191

(4th Cir. 2002).

            In addition, the district court found both Blake and his

co-defendant responsible for the shooting death of Ashton Coggins,

uncharged conduct that supported a further increase in Blake’s

sentence.     See USSG § 5K2.21.           The court considered the various

factors    under    28   U.S.C.    §   3553(a)     (2000),        noting    that      both

defendants’      sentences    would      reflect   the      seriousness         of   their

offenses, the need for adequate deterrence, just punishment, and

the need to protect the public from further crimes by these two

defendants.       Finally, the court noted the defendants’ need for




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educational training and recommended that both obtain their GED

while incarcerated.      We find no procedural error.

             Substantively, we find that the district court did not

abuse its discretion.         The Sentencing Commission has not provided

district courts with any specific guidance for determining the

extent of a departure governed by the policy statements in USSG

§ 5K2.0.     See United States v. Davis, 380 F.3d 183, 194 n.12 (4th

Cir. 2004).     While representing a substantial departure, Blake’s

sentence did not exceed the sentence that would result under the

Guidelines    if   he   had   been   convicted     of   the   same   offense    in

connection     with     the    Coggins    exchange.           See    18    U.S.C.

§ 924(c)(1)(C), (D).           Whether or not we may have reached a

different sentencing result on our own, any such determination is

insufficient to justify reversal of the district court.               Gall, 128

S. Ct. at 597.

           We therefore affirm Blake’s sentence.              We dispense with

oral   argument    because     the   facts   and    legal     contentions      are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                                          AFFIRMED




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