United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 23, 2005
Charles R. Fulbruge III
Clerk
No. 05-40428
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID CHARLES BARBER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-797-ALL
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
David Charles Barber appeals the sentence imposed following
his November 22, 2004 plea of guilty to one count of possession of
marihuana with intent to distribute on or about September 30, 2004.
Although Barber waived the right to appeal his sentence except for
upward departures and a sentence exceeding the statutory maximum,
the waiver does not bar his appeal. The district court incorrectly
*
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opinion should not be published and is not precedent except under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.
informed him that he could appeal an illegal sentence. Barber’s
challenge to the purportedly unlawful supervised release condition1
is arguably a challenge to an allegedly illegal sentence. The
Government concedes as much and declines to rely on the waiver.
Moreover, the district court’s incorrect characterization of the
waiver and failure to address the specific provisions of the waiver
and ensure that Barber understood them may have rendered the waiver
not knowing and voluntary. See United States v. Portillo, 18 F.3d
290, 292 (5th Cir. 1994). For all these reasons, we conclude that
the waiver does not preclude Barber’s appeal.
With respect to Barber’s contention that the district court
erred in ordering, as a condition of supervised release, that he
cooperate with the probation officer in the collection of DNA, his
claim is not ripe for judicial review in light of our holding in
United States v. Carmichael, 343 F.3d 756, 758 (5th Cir. 2003),
cert. denied, 540 U.S. 1136 (2004). We reject Barber’s contention
that Carmichael is distinguishable. See United States v. Riascos-
Cuenu, ___ F.3d ___ No. 05-20037, 2005 WL 2660032, at *2 (5th Cir.
Oct. 18, 2005). Accordingly, we dismiss this portion of the appeal
for lack of jurisdiction.
Barber’s second argument, concerning the treatment of drug
quantity graduations as sentencing factors rather than as elements
1
Barber was sentenced to 60 months’ imprisonment to be
followed by a 5 year term of supervised released.
2
of separate offenses under 21 U.S.C. §§ 841(a) and (b), is
foreclosed by circuit precedent. See United States v. Slaughter,
238 F.3d 580, 582 (5th Cir. 2000). Barber concedes as much and
raises the issue solely to preserve it for further review. Thus,
we affirm the judgment of the district court on this point.
AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF JURISDICTION.
3