United States Court of Appeals
Fifth Circuit
F I L E D
July 13, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
04-50835
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR IVAN ARMENDARIZ
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:00-CR-141-13
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Hector Ivan Armendariz appeals his guilty plea conviction and
sentence for conspiracy with intent to distribute more than 100
kilograms of marijuana. Armendariz asserts his guilty plea was not
given knowingly and voluntarily because the magistrate judge did
not comply with Federal Rule of Criminal Procedure 11. Because
Armendariz did not object on this basis in district court, our
review is only for plain error. See United States v. Vonn, 535
U.S. 55, 59 (2002). To demonstrate plain-error, Armendariz must
*
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this opinion should not be published and is not precedent except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.
show a reasonable probability that, but for the error, he would not
have entered the plea. See United States v. Johnson, 1 F.3d 296,
298 (5th Cir. 1993) (en banc). Armendariz has not made such a
showing.
Alternatively, Armendariz contends the appeal-waiver provision
in his plea agreement is invalid due to Rule 11 error. The
magistrate judge determined Armendariz read and understood his plea
agreement, and Armendariz raised no question regarding the
waiver-of-appeal provision before the district court. Accordingly,
he is bound by it. United States v. McKinney, 406 F.3d 744, 746
(5th Cir. 2005).
Armendariz also claims, under United States v. Booker, 125 S.
Ct. 738 (2005), that the district court erred when it sentenced him
based on facts not admitted by him or found beyond a reasonable
doubt by a jury. Because Armendariz’s appeal waiver was valid, and
his Booker claim does not meet any exception to his waiver,
Armendariz’s appeal of his sentence is DISMISSED.
AFFIRMED IN PART AND DISMISSED IN PART
2