               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 99-10955
                             Summary Calendar
                          _____________________


UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                    versus

ROBERT DANIEL SALING, JR.,
also known as Robert Salines,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
                       USDC No. 7:98-CR-8-2
_________________________________________________________________
                               May 18, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Robert Daniel Saling, Jr., appeals his conviction and sentence

following his plea of guilty to tampering with a witness under 18

U.S.C. §§ 1512(b) and 2.            Saling asserts that the government

breached the plea agreement by moving for an upward departure.            An

upward   departure   is   not   a   “prosecution”   such   that   the   plea

provision   forbidding    the   government   from   undertaking    “future

prosecution” for related acts would be violated.              Saling also

     *
      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this opinion should not be published and is not precedent except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.
contends that because the plea agreement contained a provision

stating that his sentence would be imposed under the Sentencing

Guidelines,    an   upward   departure    is   not   a   sentence   under   the

guidelines    and   constitutes   a   breach    of   the   agreement.       This

argument is directly foreclosed by United States v. Ashburn, 38

F.3d 803, 808 (5th Cir. 1994)(en banc).

     Saling asserts that the court abused its discretion in denying

his motion to withdraw his guilty plea.         He asserts that the court

erroneously found that two of the relevant factors did not apply to

him. Even assuming Saling had protested his innocence, that factor

alone was insufficient to permit withdrawal from the guilty plea.

See United States v. Bond, 87 F.3d 695, 701 (5th Cir. 1996).

Saling also maintains that his motion to withdraw was timely

because he was unaware that the government would move for an upward

departure. Saling’s motion was filed the morning of the sentencing

hearing and over two months after the government filed its motion.

Saling has not shown that the district court abused its discretion

in denying his motion to withdraw.        See United States v. Brewster,

137 F.3d 853, 857 (5th Cir.), cert. denied, 525 U.S. 908 (1998).

     Saling finally contends that the district court erred in

imposing an upward departure for obstruction of justice.                Saling

has waived his right to appeal his sentence except in certain

limited   circumstances.       This   waiver     was     made   knowingly   and




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voluntarily.       See United States v. Portillo, 18 F.3d 290, 292-93

(5th Cir. 1994).       Although the district court informed Saling at

sentencing    that    he    had     a    right   to   appeal    his     sentence,     any

confusion    arising      at   sentencing        would   have    no    effect    on   the

validity of a guilty plea.               United States v. Melancon, 972 F.2d

566, 568 (5th Cir. 1992).

     A plain reading of the sentencing transcript reveals that the

court did    not     impose    an       upward   departure      for    obstruction     of

justice; it instead granted an implicit objection raised by the

Government and applied the two-point enhancement for obstruction of

justice permitted under U.S.S.G. § 3C1.1.                 Such an enhancement is

not appealable under an upward-departure exception to a waiver-of-

appeal provision.         See United States v. Gaitan, 171 F.3d 222, 224

(5th Cir. 1999). The district court did impose an upward departure

based upon Saling’s violent and extensive criminal history.                           An

exception to the waiver provision exists for upward departures to

the extent they depart from the “guideline range deemed most

applicable    by    the    sentencing        court.”     However,       Saling   cannot

challenge this upward departure because it was not outside the

guideline range the sentencing court found “most applicable.”

Saling has shown no error by the district court on appeal.                            His

conviction and sentence are

                                                                      A F F I R M E D.




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