United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2004
Charles R. Fulbruge III
Clerk
No. 03-50722
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMERO RODRIGUEZ, JR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-683-2-WWJ
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Homero Rodriguez, Jr., (“Rodriguez”), appeals the sentence
imposed by the district court following his guilty plea
conviction for conspiracy to possess with intent to distribute
more than 50 kilograms of marijuana. Rodriguez argues that the
district court erred by not determining the net weight of the
marijuana attributed to him. For the first time on appeal,
Rodriguez argues that the district court erred by not granting
him a downward departure from his sentencing guidelines range.
*
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that this opinion should not be published and is not precedent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. 03-50722
-2-
The Government asserts that Rodriguez’s appeal is barred by the
appeal waiver set forth in Rodriguez’s plea agreement.
Because Rodriguez’s appeal waiver was not mentioned during
his rearraignment by either the magistrate judge or the
Government, FED. R. CIV. P. 11(b)(1)(N) was not satisfied and the
waiver cannot be held to have been knowing and voluntary. See
United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).
Accordingly, we can entertain the merits of Rodriguez’s appeal.
Rodriguez’s argument that the district court did not
determine the net weight of the marijuana attributed to him is
refuted by the record. Furthermore, because Rodriguez was
sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, the
district court correctly determined that the weight of the
marijuana attributed to Rodriguez did not affect his sentence and
his argument is moot. See United States v. Mankins, 135 F.3d
946, 950 (5th Cir. 1998). Because the record does not indicate
that the district court erroneously believed that it lacked the
authority to make a downward departure, we lack jurisdiction to
consider Rodriguez’s downward departure argument. See United
States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).
Accordingly, we AFFIRM Rodriguez’s sentence and DISMISS his
appeal to the extent that he argues that the district court
should have made a downward departure.
AFFIRMED IN PART, DISMISSED IN PART.