          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                 March 12, 2008
                                No. 07-30572
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

CHARLES M TEAL

                                            Defendant-Appellant


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:05-CR-250-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Charles M. Teal was charged with being a felon in possession of a firearm.
Teal pleaded guilty pursuant to a plea agreement in which he waived his right
to appeal except, in pertinent part, in the case of a sentence imposed as a result
of an upward departure or a sentence above the guidelines range calculated by
the district court. The district court upwardly departed two levels in selecting
Teal’s 41 month sentence, finding that Teal’s criminal history included “a history



      *
      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should not be published and is not precedent except under the limited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. 07-30572

of fleeing the police” and that he had thereby endangered the lives of marshals
and innocent citizens.
      Teal argues on appeal that he was wrongly denied a sentencing reduction
for acceptance of responsibility. The Government argues that appeal of this
issue is precluded by the appeal waiver in Teal’s plea agreement, which Teal
does not argue was entered involuntarily or was breached by the Government.
      A knowing and voluntary appeal waiver reserving the right to appeal in
cases of an upward departure does not preserve an appeal of the district court’s
finding of facts that relate to the district court’s calculation of a defendant’s
guidelines range of imprisonment. See United States v. McKinney, 406 F.3d 744,
746-47 (5th Cir. 2005); see also United States v. Gaitan, 171 F.3d 222, 223-24
(5th Cir. 1999) (noting the different effects of such a waiver provision on upward
adjustments and upward departures). At Teal’s rearraignment, the district
court summarized the terms of the appeal waiver and verified that Teal
understood its terms. Because the waiver was both knowing and voluntary and
there is no evidence in the record suggesting that the Government breached the
plea agreement, Teal is bound by the waiver. See United States v. Gonzalez, 309
F.3d 882, 886 (5th Cir. 2002).
      Teal also argues that the district court’s decision to upwardly depart to
reach his 41-month sentence in unreasonable. He argues that his history of
flight from police was already considered in determining the guideline range of
imprisonment and was not present to such an exceptional degree so as to remove
his case from the heartland of similar cases.
      This court reviews sentences for reasonableness. The reasonableness
review of an upward departure employs an abuse-of-discretion standard. United
States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005); see also Gall v. United
States, 128 S. Ct. 586, 591 (2007). A sentencing court does not abuse its
discretion in deciding to upwardly depart when its reasons for doing so advance
the objectives set forth in 18 U.S.C. § 3553(a)(2) and are justified by the facts of

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the case.   United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.),
cert. denied, 126 S. Ct. 2954 (2006).
      The district court did not improperly calculate the guidelines range or
treat the Guidelines as mandatory, and it considered the § 3553(a) factors.
Although Teal argues that the district court gave too much weight to his history
and characteristics when it considered the § 3553 factors, the Supreme Court
has made clear that “[t]he fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 128 S. Ct. at 597. The district court’s
reasons for upwardly departing advance the objectives set forth in § 3553(a)(2)
and are justified by the fact that Teal has attempted to flee from police prior to
each of his arrests that resulted in convictions and from the marshal who was
attempting to serve the arrest warrant for the instant conviction. The decision
to upwardly depart was therefore not an abuse of discretion.                  See
Zuniga-Peralta, 442 F.3d at 347. Teal’s unopposed motion to file his reply brief
out of time is granted.
      AFFIRMED; MOTION GRANTED.




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