          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                 FILED
                                                               January 20, 2009
                               No. 08-50514
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

ADAM G THOMPSON

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:06-CR-131-ALL


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Adam G Thompson appeals the sentence and order of restitution imposed
after he pleaded guilty pursuant to a written agreement to a scheme of wire and
mail fraud. 18 U.S.C. §§ 2, 1343. The Government seeks to enforce an appeal
waiver contained in the plea agreement. Arguably, the magistrate judge’s
comments at Thompson’s rearraignment rendered the appeal waiver
unenforceable. See United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir.



      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 08-50514

1999). We will assume arguendo that the waiver is unenforceable, but even so,
the sentence and restitution order must be affirmed.
      Thompson argues that his sentence was unreasonable because the district
court upwardly departed for a reason already taken into account by the
Guidelines.   We reject the Government’s argument that this argument is
restricted to plain error review because Thompson alerted the district court to
the legal argument he makes on appeal. Cf. United States v. Hernandez-
Martinez, 485 F.3d 270, 272-73 (5th Cir.), cert. denied, 128 S. Ct. 325 (2007).
The Guidelines accounted for five or more victims for this type offense. See
U.S.S.G. 2B1.1(b)(9). Thompson’s offense involved 40 victims. Even if this court
considers the Guidelines to implicitly consider the number of victims from
Thompson’s offense, the district court was entitled to depart upward for the
extreme circumstances of his crime. See United States v. Williams, 517 F.3d 801,
809 (5th Cir. 2008).
      Thompson’s argument that the district court abused its discretion as to the
amount of restitution he must make is unavailing. In his written agreement,
Thompson agreed to pay as much as $144,327.92. See 18 U.S.C. § 3663(a)(3);
United States v. Miller, 406 F.3d 323, 330 (5th Cir. 2005). Thompson did not
adequately brief his argument that the magistrate judge altered the plea
agreement as to the amount of loss involved. His argument that the plea
agreement was ambiguous on this point is without merit. The district court’s
order of restitution was not an abuse of discretion for the additional reason that
the count to which Thompson pleaded guilty included a fraudulent scheme that
resulted in a loss of $129,586.45. See United States v. Cothran, 302 F.3d 279,
289 (5th Cir. 2002).
      AFFIRMED.




                                        2
