United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 2, 2005
Charles R. Fulbruge III
Clerk
No. 03-51166
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN ASHLEY BOWEN, also known as “BB”,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC Nos. A-03-CV-489-SS
A-02-CR-74-ALL-SS
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Bryan Ashely Bowen, federal prisoner # 28585-180, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion
challenging his guilty-plea conviction for conspiracy to possess
with intent to distribute cocaine, methamphetamine, and MDMA, and
possession of a semi-automatic weapon in furtherance of a drug-
trafficking crime. Bowen contends that his attorney provided
ineffective assistance by failing to object to the enhancement of
his sentence for being a career offender.
*
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this opinion should not be published and is not precedent except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. 03-51166
-2-
We previously ordered Bowen’s attorney to supplement the
record with the rearraignment transcript and ordered both parties
to provide supplemental briefing addressing the validity and
applicability of the waiver provision in Bowen’s plea agreement.
On appeal, Bowen does not contest the validity of the waiver
provision, but rather asserts that it should be construed to
except challenges on the basis of ineffective assistance due to
the district court’s admonishment at rearraignment.
Bowen did not object to any FED. R. CRIM. P. 11 error before
the district court. Given the explicit terms of the waiver
provision in the plea agreement, the Government’s iteration of
those terms at rearraignment, the thorough nature of the district
court’s admonishment that the waiver would bar Bowen from later
revisiting his sentence, and Bowen’s failure to assert that he
was misled by any misstatement by the district court regarding
the exceptions to the waiver, he has not established plain error.
See United States v. Vonn, 535 U.S. 55, 59 (2002); United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
Therefore, the appeal waiver provision is binding, and we DISMISS
the appeal for lack of jurisdiction. See United States v.
Martinez, 263 F.3d 436, 438 (5th Cir. 2001).