IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21148
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE OROZCO-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-161-8
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August 26, 1997
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
José Orozco-Sanchez (Orozco) pleaded guilty to his role as a
kidnapper in furtherance of a conspiracy to possess with the
intent to distribute cocaine. Orozco challenges a two point
increase in his total offense level for possession of a weapon
pursuant to U.S.S.G. § 2D1.1(b). We have reviewed the record and
the briefs and find that the district court’s determination that
a codefendant’s possession of a firearm during the kidnaping was
reasonably foreseeable to Orozco was not clearly erroneous. See
*
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that this opinion should not be published and is not precedent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. 96-21148
-2-
United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.
1990).
We note that in the plea agreement Orozco agreed to waive
his right to appeal his sentence except in certain circumstances
which do not exist here. However, the Government makes no
mention on appeal of this waiver. Nor has the transcript of the
plea hearing been included in the appellate record, which
precludes us from determining whether or not the waiver was
informed and voluntary. The knowing and voluntary waiver in a
plea agreement of the right to appeal has been approved by this
court. See United States v. Portillo, 18 F.3d 290, 292-93 (5th
Cir. 1994); United States v. Melancon, 972 F.2d 566, 567 (5th
Cir. 1992). We are at a loss to understand why the Government
has not raised the issue in this case.
AFFIRMED.