IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21056
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN DEJESUS RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-92-CR-295-3
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January 5, 2000
Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Edwin DeJesus Ramirez appeals the district court’s amended
judgment following resentencing after the granting of relief,
pursuant to 18 U.S.C. § 3582(c)(2). He contends that the
district court abused its discretion on resentencing in failing
to impose a sentence at the low end of the guidelines range and
that the district court erred in not offering reasons for the
sentence imposed.
*
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that this opinion should not be published and is not precedent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. 98-21056
-2-
The Government contends that Ramirez’s appeal should be
dismissed because, under the terms of his plea agreement, Ramirez
waived the right to appeal his sentence unless the sentence was
based on an upward departure from the sentencing guidelines.
This court previously determined that the waiver provision was
informed and voluntary and was therefore enforceable. See United
States v. Ramirez, No. 95-20121 (5th Cir. Nov. 1, 1995).
Ramirez’s appellate brief does not address the validity or effect
of the waiver, and he has not filed a reply brief addressing the
Government’s waiver argument.
Because Ramirez’s arguments do not involve an upward
departure, the only permissible ground for appeal, they are
barred by the waiver provision in his plea agreement. The fact
that Ramirez challenges an amended judgment following
resentencing does not change this result. See United States v.
Capaldi, 134 F.3d 307, 308 (5th Cir.), cert. denied, 118 S. Ct.
2073 (1998). The appeal is frivolous, and it is DISMISSED. See
id.; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH
CIR. R. 42.2.
John T. Cox, III, Ramirez’s attorney on appeal, is ORDERED
to show cause, within fifteen days from the date of this order,
why sanctions should not be imposed against counsel for pursuing
this appeal in light of Ramirez’s waiver of his right to appeal
and the failure of counsel to address the waiver in his appellate
brief. Such sanctions may include not receiving any payment for
services rendered and expenses incurred on this appeal. See
United States v. Gaitan, 171 F.3d 222, 222-24 (5th Cir. 1999).
No. 98-21056
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APPEAL DISMISSED.