United States v. Cervantes-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III
Clerk
No. 04-41753
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME CERVANTES-GARCIA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-97-ALL
--------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Jaime Cervantes-Garcia appeals his sentence following his

guilty plea for illegal reentry after deportation. He contends

that he was sentenced in contravention of United States v.

Booker, 125 S. Ct. 738 (2005).

Cervantes-Garcia’s plea agreement contained an express

waiver of his right to appeal on all grounds, except “(a) any

punishment imposed in excess of the statutory maximum; (b) any

upward departure from the guideline range deemed most applicable

*
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this opinion should not be published and is not precedent except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. 04-41753
-2-

by the sentencing court; (c) arithmetic errors in the guidelines

calculations; and (d) a claim of ineffective assistance of

counsel that affects the validity of the waiver itself.” Our

review of the record indicates that the waiver was knowing and

voluntary and that under its plain language, it bars review of

Cervantes-Garcia’s Booker claim. See United States v. Bond, 414

F.3d 542, 545-46 (5th Cir. 2005). Cervantes-Garcia’s appeal is

therefore dismissed.

APPEAL DISMISSED.