UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10862
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
VOLO ALAN NELSON,
Defendant-Appellant.
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Appeal from the United States District Court
For the Northern District of Texas
(6:94-CR-016)
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November 11, 1997
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Volo Alan Nelson appeals the sentence he received after he
pled guilty to one count of aiding or assisting the filing of false
or fraudulent federal income tax returns. For the reasons set
forth below, we affirm.
Nelson was charged in a 38-count indictment with aiding or
assisting the filing of false or fraudulent federal income tax
*
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this opinion should not be published and is not precedent except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.
returns in violation of 26 U.S.C. § 7206(2). Pursuant to a plea
agreement, he pled guilty to Count I of the indictment. Applying
the 1995 Sentencing Guidelines, the district court sentenced him to
a 24-month term of imprisonment and a one-year term of supervised
release. The court also imposed a $3,000 fine and a $50 special
assessment. On appeal, Nelson contends that the district court’s
application of the 1995 Guidelines violated the Ex Post Facto
Clause because he would have received a lesser prison sentence
under the 1989 Guidelines, in effect at the time he committed his
offense.
We are precluded from reaching the merits of Nelson’s claim.
Nelson’s plea agreement contained a provision waiving his right to
appeal his sentence either on direct appeal or in a post-conviction
proceeding except where his sentence exceeded the statutory maximum
or constituted an upward departure. Even if we were to agree with
Nelson that the waiver in his plea agreement is invalid, we would
still conclude that Nelson has waived his right to challenge the
district court’s application of the 1995 Sentencing Guidelines.
Prior to sentencing, Nelson adopted the findings of the
Presentence Report (“PSR”) prepared in his case, which applied the
1995 Sentencing Guidelines. At his sentencing hearing, Nelson
indicated that he adopted the PSR’s application of the 1995
Guidelines because “the ’89 guidelines have a two-level enhancement
that [is] not in the present ’95 guidelines, so they come out
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identical.” By adopting the PSR’s application of the 1995
Guidelines, Nelson expressly waived his right to appeal the
application of those Guidelines. “Waiver, the ‘intentional
relinquishment or abandonment of a known right,’ is distinguishable
from forfeiture, the ‘failure to make the timely assertion of a
right.’” United States v. Calverley, 37 F.3d 160, 162 (5th Cir.
1994) (en banc). Unlike forfeited errors, which are reviewed for
plain error, waived errors are “entirely unreviewable.” United
States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).
AFFIRMED.
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