United States v. Okuribido , 273 F. App'x 343 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 10, 2008
No. 05-10749
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
THEOPHILOS OLUYINKA OKURIBIDO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-338-2
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Theophilos Oluyinka Okuribido appeals the sentence imposed following
his guilty plea convictions for illegal reentry into the United States after having
been deported and aiding and abetting the theft of government property.
Okuribido entered his plea in accordance with a plea agreement wherein
he waived his right to appeal from his sentence and reserved only the right to
appeal a sentence exceeding the statutory maximum punishment, an upward
departure from the guideline range deemed applicable by the district court, or
*
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should not be published and is not precedent except under the limited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. 05-10749
an arithmetic error at sentencing. Accordingly, his claims that the district court
erred in calculating his base offense level and his criminal history are barred
under the plea agreement. See United States v. Bond, 414 F.3d 542, 544 (5th
Cir. 2005).
Okuribido also challenges the district court’s 96 month sentence as
unreasonable. The sentence represented a two-level upward departure under
U.S.S.G. § 4A1.3. Because Okuribido did not object to the district court’s upward
departure, his argument is reviewed for plain error. See United States v. Jones,
444 F.3d 430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006).
Contrary to Okuribido’s argument, uncounted convictions may provide a
basis for an upward departure. See U.S.S.G. § 4A1.3(a)(2)(A); United States v.
Alford, 142 F.3d 825, 831 (5th Cir. 1998). Further, repeated acts of similar
criminal activity are an acceptable basis for an upward departure. See
§ 4A1.3(a)(1); United States v. Medina-Gutierrez, 980 F.2d 980, 984 (5th Cir.
1992). Thus, although Okuribido’s prior convictions were counted toward his
criminal history score, his recidivism is an independent factor warranting an
upward departure. Further, the record reveals that Okuribido was a habitual
criminal alien whose crimes became progressively more serious and
sophisticated. It was thus not unreasonable for the court to give Okuribido an
upward departure of two levels. See United States v. Zuniga-Peralta, 442 F.3d
345, 347 (5th Cir. 2006). Okuribido has failed to establish that his sentence was
plainly erroneous. The judgment of the district court is AFFIRMED.
2