                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4244


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ISIAH JAMEL BARBER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00357-BR-1)


Submitted:   November 2, 2012             Decided:   November 20, 2012


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Joseph R. Conte, LAW OFFICES OF J. R. CONTE, P.L.L.C.,
Washington, D.C.; Charles J. Soschin, THE LAW OFFICE OF C.J.
SOSCHIN, Washington, D.C., for Appellant.    Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz,   Assistant  United States  Attorneys,   Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Isiah           Jamel   Barber     appeals    the    156-month     sentence

imposed     by        the    district     court    following     his   guilty     plea,

pursuant to a written plea agreement, to conspiracy to commit

Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (2006), and

possession of a firearm in furtherance of a crime of violence

and aiding and abetting the same, in violation of 18 U.S.C.

§§ 924(c)(1)(A) and 2 (2006).                  On appeal, Barber contends that

the   district              court   incorrectly         calculated     his     advisory

Sentencing Guidelines range and erred in upwardly departing to

criminal history category VI.                  The Government contends that the

Guidelines calculation issue is barred by the appellate waiver

provision        in     the     plea     agreement.        See   United      States   v.

Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (“If a merits

brief is filed, the government is free to . . . raise the appeal

waiver issue and argue that the appeal should be dismissed based

on the waiver . . . .”).                 We agree with the Government that the

Guidelines issue is barred by the appellate waiver provision and

dismiss that portion of the appeal.                       However, we affirm the

district    court’s           decision    to   impose    an   upward   departure,     an

issue the Government does not contend is within the scope of the

waiver.    We also affirm Barber’s convictions.

            We review de novo a defendant’s waiver of appellate

rights.     United States v. Blick, 408 F.3d 162, 168 (4th Cir.

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2005).       “A defendant may waive his right to appeal if that

waiver is the result of a knowing and intelligent decision to

forgo the right to appeal.”                 United States v. Amaya-Portillo,

423   F.3d    427,    430    (4th    Cir.    2005)    (internal      quotation   marks

omitted); see United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (providing standard).                     Generally, if the district

court fully questions the defendant about the waiver during the

Federal Rule of Criminal Procedure 11 plea colloquy, the waiver

is valid and enforceable.              United States v. Johnson, 410 F.3d

137, 151 (4th Cir. 2005).                 We will enforce a valid waiver so

long as “the issue being appealed is within the scope of the

waiver.”     Blick, 408 F.3d at 168.

             Our review of the record leads us to conclude that

Barber’s waiver of appellate rights was knowing and intelligent.

Thus, the waiver is valid and enforceable.                     Turning to the scope

of the waiver, we agree with the Government that the Guidelines

calculation     issue       raised   in     Barber’s      brief    falls   within    the

scope of the appellate waiver provision.                    Therefore, we dismiss

this portion of the appeal.

             The     Government      does    not     assert,      however,    that   the

waiver    provision     precludes      our       review   of   Barber’s      contention

that the district court erred in upwardly departing to criminal

history category VI.           Accordingly, we review this claim on its

merits.      The Sentencing Guidelines permit an upward departure if

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the   district        court    determines     “that        the    defendant’s         criminal

history category substantially 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.      (2011).         In    reviewing       a    sentence

outside     the        Guidelines       range,       “we        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.    Hernandez-Villanueva,             473    F.3d     118,     123    (4th         Cir.

2007).     We conclude that the district court’s decision to depart

was reasonable, as was the extent of the departure.                                  Thus, the

district       court    did    not    abuse   its       discretion        in    imposing        an

upward departure sentence.                 See Gall v. United States, 552 U.S.

38, 51 (2007) (providing standard of review).

               Accordingly, while we dismiss Barber’s appeal of the

district    court’s       Sentencing        Guidelines         calculation,          we   affirm

Barber’s       convictions      and    the    upward       departure       sentence.            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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