IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20234
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID CANTU,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-142-66
- - - - - - - - - -
August 7, 2001
Before JOLLY, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
David Cantu, federal prisoner #71479-079, appeals his
sentence for conspiracy to possess with intent to distribute
marihuana, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and
§ 846. He raises several sentencing issues and argues that his
attorney was ineffective for failing to raise the sentencing
issue regarding his relevant conduct in the conspiracy. Based on
Cantu’s waiver, pursuant to the plea agreement, of his right to
appeal his sentence, the Government moves to dismiss this appeal
*
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this opinion should not be published and is not precedent except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. 00-20234
-2-
as it relates to Cantu’s challenges to his sentence. Cantu does
not address the waiver.
A defendant may waive his right to appeal as part of a plea
agreement if the waiver is informed and voluntary. United States
v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). The transcript
of the guilty-plea hearing shows that the district court insured
that Cantu fully understood his right to appeal and the
consequences of waiving that right. See United States v. Baty,
980 F.2d 977, 979 (5th Cir. 1992). The transcript also clearly
indicates that Cantu read and understood his plea agreement and
that he raised no question regarding the waiver-of-appeal
provision; the court specifically admonished Cantu regarding the
waiver provision. Cantu must therefore be held to the bargain to
which he agreed. United States v. Portillo, 18 F.3d 290, 293
(5th Cir. 1994).
Even if Cantu’s waiver did not encompass his claim that his
sentence contravenes Apprendi,** see United States v. Cabrera-
Teran, 168 F.3d 141, 143 (5th Cir. 1999), he is not entitled to
relief on that claim because his 120-month sentence does not
exceed the statutory maximum sentence of life for the offense
alleged in the indictment, i.e., conspiracy to possess with
intent to distribute more than 1,000 kilograms of marijuana. See
United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000),
cert. denied, 121 S. Ct. 1152 (2001); United States v. Keith, 230
F.3d 784, 786-87 (5th Cir. 2000), cert. denied, 121 S. Ct. 1163
(2001); 21 U.S.C. § 841(b)(1)(A)(vii).
**
Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 00-20234
-3-
The Government’s motion to dismiss this appeal insofar as it
relates to Cantu’s challenges to his sentence is GRANTED.
The Government argues that Cantu’s ineffective-assistance-
of-counsel claims should not be addressed for the first time on
appeal. This court does not review ineffective-assistance-of-
counsel claims on direct appeal except in the rare case where the
record permits a fair evaluation of the merits of the claim. See
United States v. Crooks, 83 F.3d 103, 108 (5th Cir. 1996).
Cantu’s ineffective-assistance-of-counsel claims were not
presented to the district court. The record is therefore
insufficient to permit evaluation of this claim at this time.
See United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
This is without prejudice to the filing of a 28 U.S.C. § 2255
motion raising the ineffective-assistance-of-counsel arguments,
since Cantu did not waive his right to seek postconviction
relief. See United States v. Rivas, 157 F.3d 364, 369 (5th Cir.
1998).
APPEAL DISMISSED.