United States Court of Appeals
Fifth Circuit
F I L E D
August 26, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-41288
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASPER RIVERA, also known as Diablo,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-175-TH-ESH-1
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jasper Rivera appeals the sentence imposed following his
guilty-plea conviction on one count of carjacking and one count of
using a firearm in relation to a crime of violence, in violation of
18 U.S.C. §§ 2119, 924(c). Rivera contends that certain sentencing
enhancements violate the Sixth Amendment rule announced in United
States v. Booker, 125 S. Ct. 738 (2005), and the district court
*
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this opinion should not be published and is not precedent except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.
erred by adjusting his offense level for abducting his victims.
Neither Rivera nor the Government addresses the effect of the
appeal-waiver in Rivera’s written plea agreement. We examine that
waiver sua sponte. See United States v. Martinez, 263 F.3d 436,
438 (5th Cir. 2001); cf. United States v. Rhodes, 253 F.3d 800, 804
(5th Cir. 2001) (disregarding waiver provision where Government
expressly chose not to rely on it).
Our review of the guilty-plea hearing transcript demonstrates
the waiver was both informed and voluntary. See United States v.
Portillo, 18 F.3d 290, 292-93 (5th Cir.), cert. denied, 513 U.S.
893 (1994); United States v. Melancon, 972 F.2d 566, 568 (5th Cir.
1992). Rivera’s challenges do not fall within any of the four
exceptions to the waiver (punishment exceeding the statutory
maximum; upward departure; arithmetic errors in guideline
calculations; and ineffective assistance of counsel that affects
the waiver’s validity). See, e.g., United States v. Bond, 414
F.3d 542 (5th Cir. 2005) (“statutory maximum” in waiver refers to
maximum allowed by statute, not the guideline maximum authorized by
guilty plea or jury verdict); United States v. McKinney, 406 F.3d
744, 746-47 (5th Cir. 2005) (sentence imposed in violation of
Booker rule did not constitute upward departure). Accordingly,
Rivera’s appeal is DISMISSED because it is barred by his waiver.
2
Counsel are cautioned that failure in the future to brief the
effect of an appeal-waiver may result in the imposition of
sanctions.
DISMISSED
3