United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2004
Charles R. Fulbruge III
Clerk
No. 03-51283
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDINO GARCIA-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1160-ALL-PM
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
We sua sponte withdraw our previous opinion** in this case
and substitute the following.
Bernardino Garcia-Alvarez appeals his sentence for
possession with intent to distribute 50 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841. He argues that the
waiver-of-appeal provision in his plea agreement is invalid and
*
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this opinion should not be published and is not precedent except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.
**
The district court has now supplemented the record with a
full transcript of the rearraignment proceeding, and neither
party has filed a response or has moved for rehearing.
No. 03-51283
-2-
that the court clearly erred in denying him a two-level reduction
in his offense level pursuant to U.S.S.G. § 3B1.2(b).
At the guilty-plea hearing, the district court recited the
terms of the plea agreement and explained the waiver-of-appeal
provision. Garcia indicated that he understood. Thus, the
waiver was knowingly and voluntarily made. See United States v.
Melancon, 972 F.2d 566, 569-70 (5th Cir. 1992).
Even if Garcia had not waived his right to appeal, this
court would reject his claim that the district court misapplied
the guidelines and clearly erred in determining that Garcia was
not entitled to an adjustment based on his role in the offense.
Garcia has not shown by a preponderance of the evidence that
there was another person involved in the offense. See United
States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995); U.S.S.G.
§ 3B1.2, comment. (n.2). Nor has he provided any evidence to
rebut the probation officer’s finding that there was no
information to substantiate or corroborate the existence of a
more culpable person in this transaction. Therefore, it was not
clear error for the court to adopt that finding. See Brown, 54
F.3d at 241.
AFFIRMED.