UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4032

MARVIN ANTONIO WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-97-63)

Submitted: February 23, 1999

Decided: August 4, 1999

Before WILKINS and NIEMEYER, Circuit Judges,
and HALL,* Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

James Wyda, Acting Federal Public Defender, Denise C. Barrett,
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Helen F. Fahey, United States Attorney, Laura Pellatiro Tayman,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
*Senior Judge Hall participated in consideration of this case but died
prior to the time the decision was filed. The decision is filed by a quorum
of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marvin Antonio White appeals from his convictions and 240-
month sentence imposed after a jury found him guilty of possession
with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994), and possession of a firearm by a convicted felon
in violation of 18 U.S.C.A. § 922(g) (West Supp. 1998). He asserts
on appeal that the district court committed plain error by failing to
suppress evidence seized during a search he contends was conducted
in violation of the Fourth Amendment and that the district court
abused its discretion in granting an upward departure under U.S. Sen-
tencing Guidelines Manual § 4A1.3, p.s. (1997). We affirm.

I.

White first contends that evidence should have been suppressed
because officers violated the Fourth Amendment in executing the
search warrant. He claims that officers forcibly entered the residence
even though they did not knock and announce their presence, they
were not denied entrance, and there were no exigent circumstances.
Although White did not move to suppress the evidence pretrial or
object to the admission of the evidence during trial, he contends on
appeal that we may review the issue for plain error. The Government
argues, however, that White's failure to raise his suppression claim
before, during, or after trial bars the issue on appeal.

We agree. We have held that failure to file a motion to suppress
evidence before trial waives the right to assert constitutional objec-
tions to the search on appeal. See United States v. Ricco, 52 F.3d 58,
62 (4th Cir. 1995); Fed. R. Crim. P. 12(b)(3), (f). Accordingly, we
find no error in the district court's admission of the evidence obtained
in the search of the residence and affirm White's convictions.

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II.

White also challenges his sentence, asserting that the district court
abused its discretion in granting an upward departure. The probation
officer reviewed White's criminal history and found that White had
fifteen criminal history points, placing him in criminal history cate-
gory VI. Because there were eight additional points that were not
included in the criminal history calculation, the probation officer
noted that the district court might want to consider an upward depar-
ture under USSG § 4A1.3, p.s.

At sentencing, the Government agreed and argued that an upward
departure was warranted based on the eight additional criminal his-
tory points, White's lack of any legitimate employment, his history of
substance abuse, and the fact he provided little support for the seven
children he fathered out of wedlock by five different women. White
objected to the departure, arguing that the guideline range provided
sufficient punishment. White also contended that if the court consid-
ered an upward departure, the court should focus on the types of
offenses in White's criminal history.

The district court described White as having a complete disregard
for the law, noting that he had twice been convicted of misdemeanor
assaults on women and of brandishing a firearm toward a woman and
questioning why he received only fines or suspended sentences. The
court also commented that White had failed to fulfill his obligations
toward his children. The court then found that had all of White's
criminal history points been included in the criminal history calcula-
tion, White had fifty percent more than was necessary to place him
in category VI and that an upward departure was warranted.

We review a district court's decision to depart upward from the
guideline range for an abuse of discretion. See Koon v. United States,
518 U.S. 81, 100 (1996). A sentencing court is encouraged to depart
upward when a defendant's criminal history category does not ade-
quately reflect the seriousness of his past criminal conduct or the like-
lihood that he will commit further crimes. See USSG § 4A1.3, p.s.
When an encouraged factor is present, a district court must determine
whether or not it has been adequately taken into account by the appli-
cable guideline. See United States v. Brock, 108 F.3d 31, 34 (4th Cir.

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1997) (citing Koon, 518 U.S. at 96). The district court's decision that
an encouraged factor has not been adequately taken into account by
the applicable guideline range is reviewed de novo. See United States
v. Rybicki, 96 F.3d 754, 757-78 (4th Cir. 1996).

We previously have held that a departure above category VI is
appropriate when the district court determines that category VI under-
represents the seriousness of defendant's criminal history. See United
States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992). Here, the district
court found that a departure was justified because White had twenty-
three criminal history points and a record of criminal behavior that
included assaults and weapons offenses. White argues, however, that
the court improperly stated in the judgment and commitment order
that it relied on his lack of employment and unfulfilled child support
obligations (both discouraged factors under the guidelines, see USSG
§§ 5H1.5, p.s., 5H1.6, p.s.) and on his prior drug use (an unmentioned
factor for a § 4A1.3 departure). Even assuming, as White suggests,
that the court relied on valid and invalid factors, we find that the sen-
tence was reasonable and that the court would have imposed the same
sentence absent reliance on the invalid factors. See Williams v. United
States, 503 U.S. 193, 203 (1992). Therefore, the district court did not
err in deciding to depart above category VI.

White also claims that the extent of the departure--the equivalent
of an increase of two offense levels--was unreasonable. Criminal his-
tory category VI (the highest criminal history category) accounted for
only fifteen of White's twenty-three criminal history points. The dis-
trict court extrapolated two to three theoretical higher criminal history
categories to account fully for White's twenty-three criminal history
points,* and then moved down the sentencing table by two offense
levels to account for the extrapolated criminal history categories. See
Cash, 983 F.2d at 561 & n.6 (approving increase in offense levels to
structure departure above criminal history category VI). The depar-
ture increased the sentencing range from 168-210 months to 210-262
months. We do not find that the district court abused its discretion in
deciding to depart by that extent.
_________________________________________________________________
*The court apparently attributed three criminal history points to each
additional criminal history category.

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Finally, White maintains that the court failed to explain why the
intermediate levels were inadequate. See id. at 561 & n.7 (in departing
for inadequacy of criminal history, court should depart to next higher
category and move to still higher category only on finding that next
higher category inadequately reflects seriousness of defendant's
record) (citing United States v. Rusher, 966 F.2d 868, 884, 890 (4th
Cir. 1992)). Although the district court did not give a separate expla-
nation of inadequacy for each higher offense level, its rationale of
advancing one level to account for each additional three criminal his-
tory points was self-explanatory and complied with the dictates of
Rusher and Cash.

We therefore affirm White's convictions and sentence. We dis-
pense 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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