United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-50558
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO IGNACIO MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:03-CR-1138-ALL-KC
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Julio Ignacio Mendez (“Mendez”) appeals from his guilty-plea
conviction for conspiracy to possess with intent to distribute
five kilograms or more of cocaine. Mendez contends that the
district court misapplied the Sentencing Guidelines by
attributing to him, pursuant to U.S.S.G. § 1B1.3, an additional
10.08 kilograms of cocaine. Specifically, he argues that he was
involved in delivering only 4.92 kilograms and had no knowledge
that his co-defendants had negotiated a total of 15 kilograms of
cocaine with an undercover agent. Mendez also contends that the
*
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this opinion should not be published and is not precedent except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. 04-50558
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district court’s determination that he was responsible for an
additional 10.08 kilograms of cocaine is unconstitutional under
Blakely v. Washington, 124 S. Ct. 2531 (2004), because he
admitted to conspiring to possess with the intent to distribute
only 4.92 kilograms of cocaine. Mendez further contends that the
district court erred in denying him a minor role adjustment.
Mendez argues that he is entitled to appeal his Blakely
claim, despite an appeal waiver, which excluded only an upward
departure, because his Blakely claim “involves an issue of
constitutional dimension.” Mendez further argues that he is
entitled to appeal his sentence because the statutory waiver of
appeal, which he executed in his plea agreement, was not done
knowingly. He contends that his appeal waiver was unknowing and
involuntary because he was in “a lot of pain” due to a recent
surgery. He also argues that the district court made no inquiry
into whether he understood that he was waiving his right to
appeal any sentence imposed by the district court.
The record indicates that Mendez’s waiver was knowing and
voluntary. See United States v. Robinson, 187 F.3d 516, 518
& n.2 (5th Cir. 1999). The district court specifically advised
Mendez that, pursuant to the plea agreement, he could appeal his
sentence only if there was an upward departure. Mendez responded
that he understood. Prior to accepting Mendez’s guilty plea, the
district court asked Mendez’s counsel if he had any concerns
regarding the competency of his client. Mendez and his attorney
No. 04-50558
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assured the district court that, despite his health, he was
competent to enter his guilty plea and understood the
consequences of his guilty plea, including the waiver-of-appeal
provision. Because Mendez waived the right to appeal his
sentence, we do not address his contentions regarding his
sentence, including his Blakely claim. See United States v.
McKinney, F.3d , No. 04-41223, 2005 U.S. App. LEXIS 6530,
at *5-6 & nn.2-3 (5th Cir. April 15, 2005); United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992).
AFFIRMED.