United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50557
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL BORUNDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-02-CR-100-16-RAJ
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Angel Borunda appeals his sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to
distribute in excess of 1000 kilograms of marijuana. Borunda was
sentenced to 120 months’ imprisonment, to be followed by a five-
year term of supervised release.
Prosecutorial misconduct was an exception to the appeal
waiver provision in Borunda’s plea agreement, and Borunda argues
that his waiver was invalid because the prosecutor engaged in
*
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this opinion should not be published and is not precedent except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. 03-50557
-2-
misconduct in asserting that Borunda was not eligible for
application of U.S.S.G. § 5C1.2, the safety valve provision.
The evidence presented showed that the agents did not
believe that Borunda had provided them with all the information
or evidence that he possessed, and the district court agreed
with the agents by refusing to apply the safety valve provision.
Borunda has not demonstrated any act of misconduct on the part of
the prosecutor in connection with the district court’s decision
not to apply the safety valve provision. Thus, Borunda was not
entitled to rely on the prosecutorial misconduct exception to
the waiver provision in his plea agreement. Borunda has not
otherwise shown that the waiver was unknowingly and involuntarily
entered. See United States v. Melancon, 972 F.2d 566, 567-68
(5th Cir. 1992).
Borunda cannot overcome the waiver by arguing that his
sentence was illegal because such argument was not excepted from
the waiver. The waiver in Borunda’s plea agreement must be
enforced, and the appeal DISMISSED. We need not address
Borunda’s claim that the district court erred in refusing to
apply the safety valve provision.
APPEAL DISMISSED.