                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4283


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DESMOND LAMONT GARRETT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00175-FL-1)


Submitted:   March 30, 2010                     Decided:    June 4, 2010


Before WILKINSON and      NIEMEYER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina,
for Appellant.   George E. B. Holding, United States Attorney,
Anne M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Desmond      Lamont     Garrett       pled    guilty        to     armed     bank

robbery, 18 U.S.C. § 2113(a), (d) (2006), and was sentenced to a

term of 150 months imprisonment, which was an upward departure

from the guideline range pursuant to U.S. Sentencing Guidelines

Manual    § 4A1.3,      p.s.    (2008).           Garrett      appeals      his     sentence,

contending      that    the     departure         resulted       in    an      unreasonable

sentence.       He     also    seeks     to    challenge       the    district        court’s

enhancement of his offense level for physical restraint of a

person    during     the      robbery    and      for    use    of    a     minor     in    the

commission of the robbery.               USSG §§ 2B3.1(b)(4)(B), 3B1.4.                    The

government      asserts        that     these      claims      should       be      dismissed

because, under the terms of his plea agreement, Garrett waived

the   right     to   raise      on    appeal       any   issues       relating        to    the

establishment of the advisory guideline range.                              We affirm in

part and dismiss in part.

              Before Garrett was sentenced, the government moved for

an upward departure under § 4A1.3(a)(1), arguing that category

III   seriously      under-represented            the    seriousness           of   Garrett’s

criminal history or the likelihood that he would commit further

crimes.       Information in the presentence report disclosed that

Garrett had a prior federal conviction for armed bank robbery.

While serving his sentence, he incurred fifty-five disciplinary

infractions,      including       multiple        infractions         for      each   of    the

                                              2
following:         possession of a dangerous weapon; threatening bodily

injury;       assault         without     serious        injury;         interfering      with

security devices; refusing to obey an order; refusing to take a

drug     test;        destruction         of     property;         setting      fires;       and

possession of intoxicants.                     Within six months of his release,

while    he     was      on     supervised       release,       Garrett       committed      the

instant offense, another armed bank robbery.

              At        sentencing,       the        district      court       adopted       the

probation officer’s recommendation for a total offense level of

29, which included increases for physical restraint of several

victims    during         the    robbery       and    for    use    of    a    minor    as    an

accomplice.           Garrett       had   six    criminal       history       points,     which

placed    him      in    criminal       history       category     III.        The   advisory

guideline range was 97-121 months.                          The court decided that a

departure was justified because a sentence within the guideline

range was insufficient to protect the public, given Garrett’s

high likelihood of recidivism.                       The court focused on Garrett’s

prior federal conviction for armed bank robbery, the fifty-five

infractions he incurred while serving his prior sentence, many

of which the court found were for “prior similar conduct,” and

the relatively short time he spent on supervised release before

he committed the instant offense.                       The court also decided that

Garrett was in need of mental health treatment and intensive

drug    treatment.            The    court      determined       that     a    departure     to

                                                 3
category IV would be insufficient, and departed to category V,

which yielded a guideline range of 130-162 months.                       The court

selected a mid-range sentence of 150 months.

              We review a sentence for reasonableness under an abuse

of discretion standard.        Gall v. United States, 552 U.S. 38, 51

(2007).        This   review   requires         consideration      of    both    the

procedural and substantive reasonableness of a sentence.                         Id.

We    first     determine   whether        the    district      court     properly

calculated the defendant’s advisory guideline range, considered

the § 3553(a) factors, analyzed the arguments presented by the

parties, and sufficiently explained the selected sentence.                      Id.;

see also United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).    If no significant procedural error is found, we review

the   substantive     reasonableness       of    the   sentence,   “taking      into

account the totality of the circumstances, including the extent

of any variation from the Guidelines range.”                 Gall, 552 U.S. at

51.

              Garrett states that he does not dispute the extent of

the departure, but contends that the district court’s basis for

a departure was unjustified--a procedural error.                        He asserts

incorrectly that the court’s only basis for departing was the

inadequacy of his criminal history.               In fact, the court relied

on the need to protect the public because of the likelihood that

Garrett would commit future crimes.                Garrett also argues that

                                       4
the    district    court’s       consideration      of    his   prison    infractions

rendered the departure unreasonable because they are not the

equivalent of crimes.            However, we have previously approved the

consideration of prison infractions as evidence of a likelihood

of recidivism.         See United States v. Heath, 559 F.3d 263, 266-67

(4th    Cir.)     (departure         justified   by      evidence    of   defendant’s

“tendency       toward    recidivism,”        including      prison    infractions),

cert. denied, 559 F.3d 263 (2009).                    Last, Garrett argues that

the district court abused its discretion to the extent that it

based    the    departure       on   his   uncounted      juvenile    adjudications.

This claim is meritless because the district court did not rely

on Garrett’s juvenile record when it explained the basis for the

departure.

               Garrett also contends that the district court failed

to correctly calculate his guideline range.                     However, Garrett is

foreclosed from raising this issue because, under the terms of

his plea agreement, he waived his right to appeal “any issues

that    relate    to     the    establishment       of    the   advisory     Guideline

range,” reserving only the right to appeal a sentence above the

guideline range.          In this appeal, Garrett does not attempt to

argue that the waiver is not enforceable; indeed, he does not

address the waiver at all.                 Our review of the record discloses

that    the    waiver     was    knowing      and   intelligent,       and   is   thus

enforceable.

                                             5
              We    conclude       that     Garrett            has    not    identified      any

significant        procedural      error.           The    court      did    not   select    the

sentence based on clearly erroneous facts or improper criteria

and it considered the § 3553(a) factors, in particular the need

to protect the public, but also the nature and circumstances of

the offense and the need to provide Garrett with needed medical

care.     The court considered whether a sentence within criminal

history category IV would be adequate and decided that it would

not.    Taking into account the totality of the circumstances and

giving “due deference to the district court’s decision that the

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

variance,”     Gall,      522     U.S.    at    51,       we    are   satisfied       that   the

sentence    was     not    substantively            unreasonable.             Therefore,     the

district      court    did       not    abuse       its    discretion         in   sentencing

Garrett.

              We    therefore          affirm       the    sentence         imposed    by    the

district court.           We dismiss that portion of the appeal in which

Garrett    challenges        the       district       court’s         calculation      of    the

guideline range.            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 IN PART;
                                                                            DISMISSED IN PART


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