United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-10496
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL BELMONTE-MARTIN,
also known as Jose Angel Rivera,
also known as Jose Angel Rivera Martinez,
also known as Raul Trejo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-359-ALL-D
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Before JOLLY, JONES and OWEN, Circuit Judges.
PER CURIAM:*
Daniel Belmonte-Martin (“Belmonte”) appeals the sentence
imposed following his guilty plea to illegal reentry into the
United States following deportation. This court remanded
Belmonte’s case for the limited purpose of clarifying the record as
to whether the district court accepted or rejected the plea
agreement at Belmonte’s sentencing. The district court has issued
a memorandum and order stating that it implicitly accepted the plea
*
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this opinion should not be published and is not precedent except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. 04-10496
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agreement. Now this court must determine whether the sentencing
issues raised by Belmonte on appeal are barred by the appellate-
waiver provision contained in his plea agreement.
Belmonte raises the following sentencing issues on appeal:
(1) whether the district court violated Belmonte’s Sixth Amendment
rights by imposing a sentence enhancement based upon the court’s
determination that Belmonte’s prior burglary conviction constituted
a crime of violence under U.S.S.G. § 2L1.2(B)(1)(A)(ii);
(2) whether the district court plainly erred in sentencing Belmonte
to more than two years under 8 U.S.C. § 1326 when the fact of his
prior conviction had not been pleaded in the indictment or proven
to a jury beyond a reasonable doubt; and (3) whether Belmonte’s
sentence is unconstitutional, in light of United States v. Booker,
125 S. Ct. 738 (2005), because he was sentenced under a mandatory
guideline scheme. Belmonte asserts that the plea agreement, which
reserved the right to appeal a sentence in excess of the statutory
maximum, does not bar the above claims because his sentence exceeds
the “statutory maximum” as that term is defined in Blakely v.
Washington, 124 S. Ct. 2531 (2004).
By its plain language, Belmonte’s knowing and voluntary appeal
waiver bars his claims as he was not sentenced above the statutory
maximum, that is, “the upper limit of punishment that Congress has
legislatively specified for violation of a statute.” See United
States v. Bond, __ F.3d __, No. 04-41125, 2005 WL 1459641, at ** 3-
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4 (5th Cir. June 21, 2005); 8 U.S.C. § 1326(b)(2). Accordingly,
his appeal is DISMISSED.