                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                            Nos. 05-12805                FEBRUARY 28, 2006
                            and 05-12952                  THOMAS K. KAHN
                                                              CLERK
                        Non-Argument Calendar
                      ________________________

                D. C. Docket Nos. 04-00048-CR-J-32-HTS
                                  03-00033-CR-J-32-MMH

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                  versus

DENNIS GRAY WILLIAMS,

                                                    Defendant-Appellant.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (February 28, 2006)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
      Appellant Dennis Gray Williams appeals his 92-month sentence stemming

from his plea of guilty to possessing and uttering a counterfeit security, in violation

of 18 U.S.C. § 513. He also appeals his convictions and sentences for unlawful use

of an identification of another person, in violation of 18 U.S.C. § 1028, and use of

unauthorized access devices, in violation of 18 U.S.C. § 1029. Williams was

convicted in two separate cases, which were consolidated for sentencing purposes.

      In the first case, herein referred to as Williams I, Williams was charged with

several offenses involving his production and use of counterfeit checks drawn on

accounts purportedly belonging to, among others, the Jacksonville Sheriff’s Office

(“JSO”). Williams pled guilty to possessing and uttering a counterfeit security

pursuant to a plea agreement, which contained a “No Further Charges” provision

that provided that the government would not charge Williams with committing any

other federal criminal offenses related to the conduct charged, that was known to

the government at the time of the execution of the agreement.

      The second case, herein referred to as Williams II, involved Williams’s

unauthorized use of another person’s identification to obtain a credit card and the

use of that card to obtain cash and other items of value. The investigation that led

to the offenses charged in Williams II was conducted and completed prior to

Williams’s execution of the plea agreement in Williams I. Williams pled guilty to



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the offenses charged in Williams II without the benefit of a plea agreement.

      After applying the Sentencing Guidelines, the district court determined that

Williams had an offense level of 10 and criminal history category of VI, which

resulted in a guideline range of 24 to 30 months imprisonment before consideration

of any departures. Finding that Williams’s criminal history category substantially

under-represented the seriousness of his criminal history and the likelihood for

recidivism, the district court decided to upwardly depart under U.S.S.G. § 4A1.3 to

an offense level of 23, which resulted in an advisory guideline range of 92 to 115

months imprisonment. The district court imposed a 92-month sentence for each of

Williams’s counts of conviction. We consolidated Williams’s cases on appeal and

consider each in turn.

      I. Williams I

      Regarding Williams I, Williams first argues that the district court erred when

it considered his prior arrests when deciding to upwardly depart from the otherwise

applicable guideline range. He asserts that in considering his arrest record in

addition to his prior convictions, the court violated his Sixth Amendment right

because it imposed a sentence that was not based solely on facts reflected in the

jury verdict or admitted by him. Additionally, Williams asserts that the court

abused its discretion in granting the upward departure because the court was



                                          3
prohibited from considering his arrest record under U.S.S.G. § 4A1.3.

      Williams did not object to the use of his arrest record in determining his

sentence before the district court. As a result, we review this claim for plain error.

United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995). Plain error occurs

when there is (1) an error; (2) that is plain or obvious; (3) that affects the

defendant’s substantial rights; and (4) that seriously affects the fairness, integrity,

or public reputation of the judicial proceedings. United States v. Olano, 507 U.S.

725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993).

      Section 4A1.3 of the guidelines provides for an upward departure if a

defendant’s criminal history category substantially under-represents the

seriousness of the defendant’s criminal history or likelihood for recidivism.

U.S.S.G. § 4A1.3(a)(1). In determining the basis for an upward departure, a court

may consider, among other things, “prior similar adult criminal conduct not

resulting in a criminal conviction.” U.S.S.G. § 4A1.3(a)(2)(E). The court,

however, cannot consider “a prior arrest record itself.” U.S.S.G. § 4A1.3(a)(3).

We have indicated that this prohibition implies that “an arrest record standing

alone is not sufficiently reliable to support a departure.” United States v. Williams,

989 F.2d 1137, 1142 (11th Cir. 1993). A court can rely on a presentence

investigation report (“PSI”) that lists arrests if the PSI provides the facts that



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prompted the arrests. United States v. Hernandez, 160 F.3d 661, 670 (11th Cir.

1998).

         After reviewing the record, we conclude that the district court did not

commit an error, plain or otherwise, when it relied on Williams’s prior arrest

history in deciding to impose an upward departure. The district court did not rely

on Williams’s arrest record itself as the PSI provided information regarding eleven

of Williams’s prior arrests, nine of which involved conduct similar to that for

which Williams was convicted in the cases before the district court. Additionally,

the district court’s decision to depart was not based solely on Williams’s arrest

record. The court also considered that Williams had been convicted of 50 felonies

and 25 misdemeanors, and that he committed the instant offense almost

immediately after he was released from federal custody in a different case, and had

state charges pending. Moreover, the district court did not violate Williams’s Sixth

Amendment right by relying on his criminal history to impose the upward

departure because Williams raised no objections to the PSI’s recitation of his

criminal history. Williams’s failure to dispute the facts contained in the PSI

operates as an admission of those facts and, since he admitted the facts underlying

the upward departure, there is no Sixth Amendment violation. See United States v.

Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (factual statements in PSI were



                                            5
deemed admitted as true because defendant raised no objections to them); United

States v. Petho, 409 F.3d 1277, 1280 n. 1 (11th Cir. 2005) (“Because Petho

admitted to the facts underlying these enhancements, there is no Sixth Amendment

error.”).

       Second, Williams contends that the extent of the district court’s upward

departure was unreasonable because the court did not give him notice as to the

particular prior convictions it was considering in evaluating the upward departure

and the court improperly relied on his prior arrest record when upwardly departing.

Williams argues that the court’s departure was also unreasonable because it used

an improper method for determining the degree of the departure when it failed to

move incrementally down the sentencing table.

       Because Williams failed to object to the reasonableness of the upward

departure imposed by the district court on the grounds he asserts in this claim, we

review this claim for plain error.   Maurice, 69 F.3d at 1557. Section 4A1.3 of the

guidelines instructs that in upwardly departing from a category VI, “the court

should structure the departure by moving incrementally down the sentencing table

to the next higher offense level in Criminal History Category VI until it finds a

guideline range appropriate to the case.” U.S.S.G. § 4A1.3(a)(4)(B). We have

held that district courts do not have to “explicitly discuss their reasons for



                                            6
bypassing incremental offense level sentencing ranges” when imposing a criminal

history departure above a category VI. United States v. Dixon, 71 F.3d 380, 383

(11th Cir. 1995). In Burns v. United States, 501 U.S. 129, 135-139, 111 S. Ct.

2182, 2186-2187, 115 L. Ed. 2d 123 (1991), the Supreme Court held that a district

court must give notice that it is contemplating an upward departure before it

imposes a departure on a ground not identified in the PSI or in a pre-hearing

submission by the government. Id.

      We conclude from the record that the district court did not plainly err in

imposing a 13-level upward departure based on Williams’s criminal history. The

court did not use an improper method for determining the degree of the departure

in this case as it acknowledged that it had to move incrementally down the

sentencing table to determine the applicable guideline range. The court considered

Williams’s criminal history and the factors set out in § 3553(a), and, based on

these considerations, determined that an offense level of 23 yielded an appropriate

guideline range of 92 to 115 months imprisonment. After again considering the

factors in § 3553(a), the court imposed a 92-month sentence. The court did not

have to discuss each offense level it bypassed in imposing the departure.

Additionally, as discussed above, the district court did not err in relying, in part, on

Williams’s arrest record in departing. Furthermore, contrary to Williams’s



                                            7
assertion, the court was not required to give him notice of the upward departure

because the PSI identified the departure. In any event, the court gave Williams

notice that it was contemplating an upward departure at all of his sentencing

hearings. To the extent Williams asserts that the court should have notified him of

the specific convictions it considered in evaluating the departure, the court’s

decision was not based on particular convictions, but was based on Williams’s

overall criminal history in general, and the court informed Williams of such. As a

result, the 13-level departure imposed by the court was not plainly erroneous.

      Next, Williams argues that he was not put on notice as to the extent of any

potential departure because no viable basis for an upward departure existed as a

result of the nature of his offense and related conduct. He contends that the degree

and extent of the upward departure violated the Ex Post Facto Clause because the

sentence imposed by the district court was higher than realistically imagined at the

time he committed the offenses. Because the crimes were committed pre-Booker,

the Sentencing Guidelines were mandatory and Williams contends it was not

imaginable that he would receive the sentence he received based on an advisory

guideline scheme which resulted from a decision announced after he committed the

offenses. Moreover, Williams argues that his sentence also violated the Ex Post

Facto Clause because the court considered a prohibited factor in determining his



                                           8
sentence.

      We generally review claims that a sentence was imposed in violation of the

Ex Post Facto Clause de novo. United States v. Abraham, 386 F.3d 1033, 1037

(11th Cir. 2004), cert. denied, 126 S. Ct. 417 (2005). However, because Williams

did not raise this claim before the district court, we review for plain error. Id.

“The ex post facto clause prohibits the enactment of statutes which . . . make more

burdensome the punishment for a crime, after its commission . . .” Id. (internal

quotations and citation omitted). Two elements are needed to find an ex post facto

violation: (1) the law must be retrospective, meaning it applies to events occurring

before its enactment; and (2) the offender must be disadvantaged by it. Id.

      At the time Williams committed his offense, the U.S. Code provided for a

maximum sentence of ten years imprisonment. See 18 U.S.C. § 513 (2002).

Furthermore, the guidelines provided that a district court could upwardly depart

from the otherwise applicable guideline range if a defendant’s criminal history

category significantly under-represented the defendant’s criminal history or the

likelihood that he would commit further crimes. See U.S.S.G. § 4A1.3 (Nov. 1,

2001). The guidelines also provided that in making its departure decision, the

court could consider prior similar conduct that did not result in a conviction. Id.

      The retroactive application of Booker in this case does not violate ex post



                                           9
facto principles. Williams had fair warning that he faced up to ten years

imprisonment for the offense he committed, that the court had the discretion under

the guidelines to increase his sentence based on his criminal history, and that the

court could consider his arrest record in deciding whether to depart. Accordingly,

we hold that his 92-month sentence does not violate ex post facto principles.

      Finally, Williams asserts that the government breached the plea agreement in

the instant case when it pursued the charges in Williams II. He contends that he

was induced into entering into the plea agreement by the “No Further Charges”

clause because he believed it limited the government’s ability to assert new charges

based on the investigation that occurred before he entered into the plea agreement,

and he believed that the government would have asserted any charges from that

investigation in the instant case. He contends that the government also breached

the plea agreement because it suggested that the court sentence him above the

applicable guideline range. He asserts that the government denied him the benefit

of his bargain because it was not only an unpersuasive advocate for the plea

agreement, but effectually argued against it.

      Although Williams filed a motion for specific performance in Williams II

requesting that the court dismiss the indictment in that case based on the plea

agreement in the instant case, Williams did not assert in either case that the



                                          10
government breached the plea agreement. For this reason, we review his claim for

plain error. United States v. Thayer, 204 F.3d 1352, 1356 (11th Cir. 2000).

      Williams fails to show that the government’s alleged breach of the plea

agreement constitutes plain error because he fails to establish that it affected his

substantial rights. The record reflects that the institution of Williams II did not

affect the court’s decision to depart. During Williams’s first sentencing hearing,

only the instant case was before the court, and the court stated at that time that it

was considering an upward departure because of Williams’s extensive criminal

history. Further, although the government may have potentially breached the plea

agreement when it suggested that the court sentence Williams within a range

higher than that otherwise applicable, the record reflects that the court did not

understand the government’s comments to be a motion for an upward departure,

and, in any event, the court found that the sentence recommended by the

government was nevertheless “dramatically inadequate.” The court’s statements

during the sentencing hearings make it apparent that from the outset the court did

not consider any of the guideline ranges discussed to be appropriate. In fact, the

court indicated that it had considered imposing the statutory maximum sentence,

which greatly exceeded the sentencing range recommended by the government. As

a result, Williams cannot show that any potential breach of the plea agreement by



                                           11
the government affected his substantial rights.

      II. Williams II

      In Williams II, Williams argues that the district court erred in denying his

motion for specific performance of the plea agreement in Williams I. He contends

that the “No Further Charges” provision prevented the government from indicting

him in Williams II. He argues that Williams II and Williams I were “related”

because he used a counterfeit JSO check, which was the same conduct he was

indicted for in Williams I, to make a payment on the fraudulently obtained credit

card. He contends that the government was aware of the investigation that lead to

the charges in Williams II at least six months before he entered into the plea

agreement in Williams I, and the conduct in the instant case occurred during the

same time period as that in Williams I. He questions what other charges the “No

Further Charges” provision of the plea agreement could have referred to and

asserts that the district court’s line of reasoning in denying his motion was flawed.

He asserts that cases involving fraud do not occur in a vacuum and that his conduct

in Williams I helped to perpetuate the cover-up of his conduct in the instant case.

      When the government fails to honor a plea agreement, the court has the

discretion of determining the appropriate remedy. United States v. Jefferies, 908

F.2d 1520, 1527 (11th Cir. 1990). A knowing and voluntary guilty plea waives all



                                          12
nonjurisdictional defects in the proceedings against a defendant. United States v.

Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986).

      After reviewing the record, we conclude that Williams waived his right to

appeal the district court’s denial of his motion for specific performance. Williams

ultimately entered an unconditional plea of guilty. Additionally, prior to entering

his guilty plea, the district court informed Williams, among other things, that his

plea was unconditional and that he would be giving up the right to appeal the

denial of his motion. Williams does not contend that his guilty plea was

unknowing or involuntary. Accordingly, because Williams’s claim is

nonjurisdictional, he waived his right to appeal the denial of his motion for specific

performance when he entered his unconditional guilty plea.

      Next, Williams argues that the 92-month sentence imposed by the district

court was unreasonable, despite his criminal history, because it resulted from an

unrequested upward departure. He contends that his sentence is three-times longer

than the high-end of the applicable guideline range, which was 24 to 30 months

imprisonment.

      “A district court’s decision to depart from the guidelines is reviewed for

abuse of discretion.” United States v. Jones, 289 F.3d 1260, 1266 (11th Cir. 2002);

see also United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (holding



                                          13
that pre-Booker standards for reviewing application of the Sentencing Guidelines

still apply post-Booker because the “reasonableness” standard applies to the

ultimate sentence imposed, not application of individual guidelines). “The district

court’s interpretation of the sentencing guidelines is subject to de novo review on

appeal, while its factual findings must be accepted unless clearly erroneous.”

United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005) (internal quotations

and citation omitted). After the court correctly calculates the guidelines, the court

may impose a more severe or more lenient sentence, which we review for

reasonableness in light of the factors set out in 18 U.S.C. § 3553(a). United States

v. Jordi, 418 F.3d 1212, 1215 (11th Cir.), cert. denied, 126 S. Ct. 812 (2005).

      Section 4A1.3 of the guidelines provides for an upward departure if a

defendant’s criminal history category substantially under-represents the

seriousness of the defendant’s criminal history or likelihood for recidivism.

U.S.S.G. § 4A1.3(a)(1). In determining the basis for an upward departure, a court

may consider, among other things, “prior similar adult criminal conduct not

resulting in a criminal conviction.” U.S.S.G. § 4A1.3(a)(2)(E). The statutory

maximum for violating § 1028 was 15 years imprisonment. 18 U.S.C. § 1028.

The statutory maximum for violating § 1029 was 10 years imprisonment. 18

U.S.C. § 1029.



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      The district court’s sua sponte application of an upward departure does not

render Williams’s sentence unreasonable. As an initial matter, the district court did

not abuse its discretion by sua sponte imposing an upward departure. The

guidelines expressly authorize a court to depart upward from a defendant’s

guideline range if the court determines that the defendant’s criminal history

category does not adequately reflect the seriousness of the defendant’s criminal

history or likelihood of recidivism. Unlike a provision such as U.S.S.G. § 5K1.1,

there is no requirement that the government make a motion for an upward

departure under § 4A1.3.

      Williams’s claim only concerned the process by which the court came up

with his sentence, and does not assert how the sentence itself is unreasonable.

Nevertheless, the sentence imposed by the court is reasonable. The court correctly

applied the guidelines after finding that Williams’s criminal history category

under-represented the seriousness of his criminal history. The record reflects that

the court considered the factors set out in § 3553(a), specifically emphasizing the

need for Williams’s sentence to afford adequate deterrence and protect the public

from further crimes. In light of Williams’s extensive criminal history, which

included convictions in 32 cases, 27 of which involved conduct similar to the

offenses involved in the cases before the court, and his repeated commission of the



                                          15
same or similar crimes, the 92-month sentence imposed by the court achieves the

sentencing purposes set forth in § 3553(a), including the specific factors

emphasized by the district court.

      For the above stated reasons, we affirm Williams’s convictions and

sentences.

      AFFIRMED.




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