IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40714
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO ROMULO LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(M-00-CR-26-2-S1)
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May 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Roberto Romulo Luna appeals his
guilty-plea conviction and sentence for conspiracy to possess with
intent to distribute more than 100 kilograms but less than 1000
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841
(b)(1)(B), and 846. Luna argues that the waiver-of-appeal
provision in his plea agreement is invalid because the district
court failed to comply with Fed. R. Crim. P. 11(c)(6). We conclude
that the district court sufficiently complied with Rule 11 and that
Luna's waiver of appeal is valid. See United States v. Robinson,
*
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that this opinion should not be published and is not precedent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.
187 F.3d 516, 518 (5th Cir. 1999); United States v. Melancon, 972
F.2d 566, 567 (5th Cir. 1992).
Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), Luna argues that his sentence was improperly
determined on the basis of a quantity of drugs not alleged in his
indictment. Luna’s Apprendi challenge to the district court's
determination is unavailing: The record shows that he executed a
valid waiver of appeal of his sentence and that this issue is not
encompassed within an exception to the waiver. Even though the
presentence report determined that Luna was responsible for a
greater drug quantity than alleged in the indictment, his sentence
did not exceed the statutory maximum based on the quantity alleged
in the indictment, thereby making Apprendi inapplicable. See
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1163 (2001); United States v. Doggett, 230 F.3d
160, 164-65 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152 (2001).
Luna also argues that his guilty plea was not knowing and
voluntary because the district court sentenced him pursuant to the
relevant conduct determined in the presentence investigation
report. Our review of the record satisfies us that Luna's guilty
plea was knowing and voluntary. See United States v. Pearson, 910
F.2d 221, 223 (5th Cir. 1990); United States v. White, 912 F.2d
754, 756 (5th Cir. 1990).
AFFIRMED.
2