United States v. Morales-Pineda

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2005

Charles R. Fulbruge III
Clerk
No. 04-50369
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO MORALES-PINEDA,

Defendant-Appellant.

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Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-27-1-FM
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Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Antonio Morales-Pineda (Morales) appeals his

guilty-plea conviction of conspiracy to possess with intent to

distribute more than 50 kilograms of marijuana. He argues that

the merits of his appeal should be addressed despite an appeal

waiver in his plea agreement because the waiver was not informed

and voluntary. He argues that his appeal waiver, to which he

agreed before the Supreme Court issued its decision in United

States v. Booker, 125 S. Ct. 738 (2005), was based on 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this opinion should not be published and is not precedent except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. 04-50369
-2-

erroneous advice that the guidelines were mandatory and that the

district court was required to issue a sentence in conformity

with those guidelines. However, this argument is unavailing.

See Brady v. United States, 397 U.S. 742, 757 (1970). We

conclude that Morales’s appeal waiver was informed and voluntary.

See United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999);

United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992).

Citing the Ninth Circuit’s opinion in Journigan v. Duffy,

552 F.2d 283, 289 (9th Cir. 1977), Morales also argues in a brief

footnote that even if this court were to determine that his plea

was made knowingly and voluntarily, the waiver was unenforceable

because the statute under which he was sentenced, 18 U.S.C.

§ 3553(b)(1), has been struck down as unconstitutional. However,

this argument also is unavailing. See Booker, 125 S. Ct. at

764-65, 769; United States v. McKinney, ___ F.3d ___, No. 04-

41123, 2005 WL 887153, at *2-*3 (5th Cir. Apr. 15, 2005).

Because Morales waived his right to appeal as part of his

plea agreement, we dismiss the appeal. McKinney, 2005 WL 887153,

at *1.

APPEAL DISMISSED.