                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4550


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

SHAKINA JANAE OATES,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:16-cr-00117-FL-1)


Submitted: April 13, 2018                                          Decided: May 2, 2018


Before DUNCAN, AGEE, and FLOYD, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam opinion.


Louis C. Allen, Acting Federal Public Defender, Greensboro, North Carolina, Jennifer C.
Leisten, Research & Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United
States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Shakina Janae Oates appeals the 36-month sentence imposed following her guilty

plea to mail fraud, in violation of 18 U.S.C. § 1341 (2012). On appeal, Oates argues that

the district court plainly erred in imposing a six-level Sentencing Guidelines

enhancement for a loss amount exceeding $40,000 and that her upward-departure

sentence is substantively unreasonable. The Government argues, and Oates contests, that

her challenge to the loss amount enhancement is barred by the appeal waiver provision in

her plea agreement. The Government also argues that Oates’ sentence is substantively

reasonable. For the reasons that follow, we dismiss the appeal in part and affirm in part.

       Generally, we review a sentence, “whether inside, just outside, or significantly

outside the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This standard encompasses

review for both procedural and substantive reasonableness. United States v. Howard, 773

F.3d 519, 528 (4th Cir. 2014). We first consider whether the district court committed

significant procedural error, such as improperly calculating the Guidelines range,

insufficiently considering the 18 § 3553(a) (2012) factors, or inadequately explaining the

sentence imposed. Gall, 552 U.S. at 51. If we find no procedural error, we also must

consider the substantive reasonableness of the sentence in view of the totality of the

circumstances. Id. The sentence imposed must be “sufficient, but not greater than

necessary,” to satisfy the purposes of sentencing. See 18 U.S.C. § 3553(a).

       Although Oates’ challenge to the loss amount enhancement raises a question of

procedural reasonableness, we conclude this issue is barred by Oates’ appeal waiver. We

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review de novo the validity of an appeal waiver. United States v. Copeland, 707 F.3d

522, 528 (4th Cir. 2013). We will enforce a waiver if it is valid and the issue appealed

falls within the waiver’s scope. United States v. Davis, 689 F.3d 349, 355 (4th Cir.

2012). A waiver is valid if it is knowing and voluntary, considering the totality of the

circumstances. Copeland, 707 F.3d at 528.

      Oates does not argue that her waiver is invalid, and our review of the record

indicates that it was both knowing and voluntary. See United States v. Thornsbury, 670

F.3d 532, 537 (4th Cir. 2012). Instead, Oates contends that her challenge to the loss

amount enhancement falls outside the scope of the waiver. “In determining whether an

appellate waiver provision bars consideration of the issues raised in a particular appeal,

we interpret the terms of the parties’ plea agreement in accordance with traditional

principles of contract law.” United States v. Yooho Weon, 722 F.3d 583, 588 (4th Cir.

2013). Because a guilty plea pursuant to a plea agreement “implicates a defendant’s

constitutional rights,” we review plea agreements “with greater scrutiny than we would

apply to a commercial contract and hold the Government to a greater degree of

responsibility than the defendant for imprecisions or ambiguities in plea agreements.”

United States v. Davis, 714 F.3d 809, 814-15 (4th Cir. 2013) (alteration and internal

quotation marks omitted).

      We find Oates’ challenges to the waiver squarely foreclosed by United States v.

McLaughlin, 813 F.3d 202 (4th Cir. 2016). In McLaughlin, we held that an appeal

waiver identical to the waiver provision included in Oates’ plea agreement was not

ambiguous, but instead plainly “allows challenges to upward departures from a

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Guidelines range, but not challenges to the establishment of a Guideline range.” Id. at

204-05. As we recognized in McLaughlin, a challenge to a Guidelines enhancement

“relates to the establishment of the Guidelines range” and thus “lies at the heart of the

waiver clause” within that provision. Id. at 204. Although the appellant in McLaughlin

did not question the substantive reasonableness of her sentence, that fact had little bearing

on our construction of the appeal waiver’s operative language. See id. And while Oates

also attempts to rely on United States v. Rhodes, 665 F. App’x 275, 276 (4th Cir. 2016)

(No. 15-4624), to argue that McLaughlin’s rationale does not apply to her, that

unpublished opinion is both nonbinding and readily distinguishable.            Because we

conclude that Oates’ Guidelines challenge is barred by her appeal waiver, we dismiss the

portion of the appeal challenging her loss amount enhancement.

       Turning to the substantive reasonableness of the court’s upward departure, we

must “consider whether the sentencing court acted reasonably both with respect to its

decision to impose such a sentence and with respect to the extent of the divergence from

the sentencing range.” United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014)

(internal quotation marks omitted). “The farther the court diverges from the advisory

[G]uideline[s] range, the more compelling the reasons for the divergence must be.”

United States v. Tucker, 473 F.3d 556, 561 (4th Cir. 2007) (internal quotation marks

omitted). However, we must “give due deference to the district court’s decision that the

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

874 F.3d 398, 409 (4th Cir. 2017) (internal quotation marks omitted). “[E]ven though we

might reasonably conclude that a different sentence is appropriate, that conclusion,

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standing alone, is an insufficient basis to vacate the district court’s chosen sentence.” Id.

(alterations and internal quotation marks omitted).

       The Sentencing Guidelines permit an upward departure based on the inadequacy

of a defendant’s criminal history category “[i]f reliable information indicates that the

defendant’s criminal history category significantly under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes.”   U.S. Sentencing Guidelines Manual § 4A1.3(a)(1), p.s. (2016).           Relevant

considerations include prior sentences not used in computing the defendant’s criminal

history category, the nature of her prior offenses, and her likelihood of recidivism in light

of prior lenient treatment she received.         See USSG § 4A1.3(a)(2), cmt. n.2(B) &

background, p.s. The court may properly base a USSG § 4A1.3(a), p.s., departure on

prior convictions too old to be counted in calculating the defendant’s criminal history.

Howard, 773 F.3d at 529; see United States v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992).

       Oates argues that the court imposed a substantively unreasonable sentence because

it focused exclusively on her criminal history and failed to credit the mitigating factors

supporting a lower sentence. She contends that her criminal history is insufficient to

place her in the worst two percent of fraud offenders who received upward departures,

thereby creating unwarranted disparities with similarly situated defendants. Ultimately,

she asserts that the court’s reasoning for departing upward was insufficient to support the

sentence imposed.

       We find these arguments unpersuasive. Oates’ criminal history generated 26

criminal history points—twice the points needed to qualify her for criminal history

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category VI, see USSG ch. 5, pt. A (sentencing table)—and included numerous

additional, unscored prior convictions for fraud-related offenses.         These unscored

convictions were not particularly severe, but they demonstrated a clear pattern of

fraudulent conduct that was largely unabated over the course of Oates’ adult life, despite

repeated lenient treatment by the state courts. Although Oates argued that she had ceased

her fraudulent conduct for a period of several years before beginning her mail fraud

offense, she incurred an additional state conviction for conduct occurring during this

period and undertook her extended mail fraud offense within five years after completing

a state prison term of several years. These factors support the district court’s conclusion

that Oates’ criminal history score substantially underrepresented her criminal history and

likelihood of committing similar crimes in the future.

       Oates argues that only approximately two percent of fraud offenders receive

upward departure sentences, and that the nature and circumstances of her run-of-the-mill

offense conduct does not place her within these “worst of the worst” among fraud

offenders. However, Oates provides nothing to suggest that other fraud offenders are

similarly situated. As the district court recognized, Oates’ mail fraud offenses required a

new degree of craftiness, and her financial profile suggested that she had not yet

accomplished her goal of learning to live within her means. In light of her history, the

court’s significant concern for Oates’ likelihood of recidivism and the need to deter

future misconduct, to promote respect for the law, and to protect the public was well-

taken, notwithstanding Oates’ positive attributes and voluntary efforts at rehabilitation.



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       We have recognized that a court may abuse its discretion by placing undue

emphasis on a single sentencing factor that is “only tangentially connected” to the

defendant’s criminal conduct and at the expense of other relevant factors. Zuk, 874 F.3d

at 410. Here, however, the court clearly explained why it concluded that a Guidelines

sentence was not appropriate, demonstrating that it had considered Oates’ arguments in

mitigation and credited these arguments when declining to depart to the extent requested

by the Government. In view of the myriad aggravating and mitigating factors presented

by the parties, we conclude that the district court acted within its discretion in imposing a

modest upward departure only three months above the original Guidelines range. Cf.

United States v. McCoy, 804 F.3d 349, 352 (4th Cir. 2015) (upholding upward departure

and collecting similar cases).

       Accordingly, we dismiss the appeal in part, insofar as Oates challenges her

Guidelines enhancement for loss amount, and affirm in part, insofar as Oates challenges

the substantive reasonableness of her sentence. We dispense with oral argument because

the facts and legal contentions are adequately before this court and argument would not

aid the decisional process.


                                                                     DISMISSED IN PART;
                                                                      AFFIRMED IN PART




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