UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4696

WINSTON WOODROW FRENCH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-97-41-F)

Submitted: August 11, 1998

Decided: September 2, 1998

Before MURNAGHAN and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, Gordon Widenhouse,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Thomas B. Murphy, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Winston Woodrow French appeals from his fifty-seven month sen-
tence imposed after his guilty plea to one count of knowingly possess-
ing cellular telephones that had been modified and altered to obtain
the unauthorized use of telecommunications services in violation of
18 U.S.C.A. § 1029(a)(5) (West Supp. 1998). He contends that the
district court erred in denying him a two-point reduction in his
offense level for acceptance of responsibility and in departing upward
because criminal history category VI under-represented his criminal
history. For the reasons that follow, we affirm French's sentence.

In the plea agreement, French acknowledged that the sentencing
court was not bound by any sentencing recommendation or by any
agreement as to the application of the guidelines and that even if a
sentence up to the statutory maximum were imposed, French could
not withdraw his guilty plea. French expressly waived all rights to
appeal "whatever sentence is imposed, including any issues that relate
to the establishment of the Guideline range, reserving only the right
to appeal from an upward departure from the Guideline range that is
established at sentencing." The guilty plea was accepted by the dis-
trict court at a hearing conducted according to the requirements of
Fed. R. Crim. P. 11. During the hearing, the district court specifically
inquired about the waiver provision, and French affirmed his intention
to waive his appeal rights. A defendant may waive the right to appeal
if that waiver is knowingly and voluntarily made. See United States
v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995); United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). French does not
allege that his waiver was not knowingly and voluntarily made.
Although the plea agreement provided that a two-level downward
adjustment was warranted for French's acceptance of responsibility,
this agreement was subject to French's conduct prior to sentencing,
and was not binding on the court. Accordingly, we find that French
waived his right to appeal on this basis.

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French also challenges the upward departure from the guideline
range based on the sentencing court's conclusion that Criminal His-
tory Category VI did not adequately reflect the seriousness of his past
criminal conduct. Although French waived his right to appeal, this
issue is properly before the court because French reserved the right
to appeal from an upward departure from the established guideline
range.

A court may depart upward "[i]f reliable information indicates that
the criminal history category does not adequately reflect the serious-
ness of the defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes." USSG § 4A1.3, p.s.* The sec-
tion is designed to deal with defendants who possess an extensive
record that is not adequately reflected by their criminal history cate-
gory, or those whose criminal background shows them to pose a
greater risk of serious recidivism. See United States v. Blake, 81 F.3d
498, 504 (4th Cir. 1996) (quoting USSG § 4A1.3, comment.
(backgd)). The decision to depart in an atypical case is reviewed for
abuse of discretion. See United States v. Rybicki, 96 F.3d 754, 756-57
(4th Cir. 1996) (citing Koon v. United States , 518 U.S. 81 (1996)).

As a basis for the one offense level upward departure in this case,
the district court specifically found that criminal history category VI
did not adequately represent French's past criminal conduct and ten-
dency to recidivism. French had an extensive ten-year history of crim-
inal activity ranging from numerous counts of unauthorized use of a
motor vehicle before he was sixteen years old to several drug crimes,
armed robbery, breaking and entering, firearms offenses, and a num-
ber of assaults. Although French asserts that his criminal history is
typical of a person in criminal history category VI, we find no abuse
of discretion in the district court's conclusion that category VI failed
to "adequately capture the seriousness of the defendant's past criminal
conduct." French also displayed a propensity to commit future crimes,
as evidenced by his repeated violations of the terms of his federal
bond release, his violation of each of his three prior terms of super-
vised release, and his continued assaults and criminal behavior while
incarcerated. In light of this conduct and the leniency of French's past
sentences, we find no abuse of discretion in the district court's
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*U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995).

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upward departure from offense level fifteen to offense level sixteen.
See United States v. Cash, 983 F.2d 558, 561 & n.6 (4th Cir. 1992).

In conclusion, we affirm French's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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