United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-40578
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE RAMIREZ-NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-958-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Ramirez-Nunez appeals the sentence imposed
following his guilty-plea conviction of violating 8 U.S.C.
§ 1326(a) and (b) by being found in the United States, without
permission, following both his conviction of an aggravated felony
and subsequent deportation. He seeks to challenge the district
court’s denial of his motion for a downward departure.
The record reflects that Ramirez-Nunez knowingly and
voluntarily waived his “right to appeal any sentence imposed
within the guidelines range.” Specifically, Ramirez-Nunez waived
*
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this opinion should not be published and is not precedent except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. 04-40578
-2-
“the right to appeal the sentence imposed or the manner in which
it was determined” unless the sentence was “imposed above the
statutory maximum” or constituted “an upward departure from the
Sentencing Guidelines . . . .” The exceptions to Ramirez-Nunez’s
waiver-of-appeal provision do not permit an appeal in this case.
As Ramirez-Nunez’s appeal waiver clearly precludes this
appeal, and as Ramirez-Nunez has not raised any argument that the
waiver-of-appeal provision is invalid or otherwise inapplicable,
we DISMISS the appeal as frivolous. See 5TH CIR. R. 42.2; Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Larry Warner, Ramirez-Nunez’s attorney on appeal, is warned
that pursuing frivolous appeals will invite sanctions. See
United States v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).
APPEAL DISMISSED; SANCTION WARNING ISSUED.