No. 99-50957
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50957
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE TERRAZAS-ACOSTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-713-1-DB
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April 13, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Rene Terrazas-Acosta appeals the sentence imposed following
his guilty-plea conviction of illegal reentry into the United
States following deportation in violation of 8 U.S.C. §§ 1326(a)
& (b)(2). He argues that the district court mistakenly believed
that it lacked the authority to depart downward based on his
cultural assimilation into the United States. The record
indicates that the district court recognized its authority to
depart downward based on cultural assimilation but determined
that a downward departure was not warranted based on the facts of
*
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that this opinion should not be published and is not precedent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. 99-50957
-2-
the case. Accordingly, this court lacks jurisdiction to review
the district court’s decision. See United States v. Reyes-Nava,
169 F.3d 278, 280 (5th Cir. 1999).
This court notes that in his plea agreement Terrazas-Acosta
agreed to waive the 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 this court 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). This court is at a loss to
understand why the Government has not raised the issue of waiver
in this case, and why defense counsel did not include a
transcript of the Rule 11 hearing in the record.
APPEAL DISMISSED.