IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11116
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS NOTO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-34-ALL-L
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August 23, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Thomas Noto argues that the district court erred in
adjusting his offense level eight levels pursuant to U.S.S.G.
§ 2B1.1(b)(1). However, Noto knowingly and voluntarily waived
his right to appeal his sentence in his plea agreement, except
for two expressly reserved issues. See United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992). Under our
precedent, which we are not free to discard, Noto’s waiver is
effective. See FDIC v. Abraham, 137 F.3d 264, 268 (5th Cir.
1998) (“[w]e are, of course, a strict stare decisis court”).
*
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that this opinion should not be published and is not precedent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. 99-11116
-2-
Noto argues that the district court’s § 2B1.1(b)(1)
enhancement is really an appealable upward departure under the
plea agreement. Because he has failed to provide any legal or
factual analysis for this argument, it is waived. See American
States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir. 1998).
This appeal is without arguable merit and thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, it is DISMISSED. 5th Cir. R. 42.2.