United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-20898
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO GARCIA-LOZANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-446-2
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Fernando Garcia-Lozano (Garcia) appeals the sentence imposed
following his guilty-plea conviction for conspiracy to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846. He asserts that the district
court’s strict adherence to the Sentencing Guidelines without
adequate consideration of the factors in 18 U.S.C. § 3553(a)
resulted in an unreasonably high sentence. He also asserts that
the district court clearly erred in imposing firearm and
leader/organizer enhancements under the Guidelines. In addition,
*
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this opinion should not be published and is not precedent except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. 05-20898
-2-
Garcia seeks to adopt by reference the arguments raised by his
co-defendants. However, because he is the sole appellant in this
case, we will not consider arguments that are not contained in
his brief. See FED. R. APP. P. 28 (i).
The Government asserts that Garcia is barred from appealing
his sentence by the appeal waiver in his plea agreement. The
provision states that “the defendant waives the right to appeal
the plea, conviction and sentence (or the manner in which it was
determined) . . . except for an upward departure.” We apply the
normal principles of contract interpretation when construing a
plea agreement. United States v. McKinney, 406 F.3d 744, 746
(5th Cir. 2005). So long as the defendant’s agreement to a
waiver provision was knowing and voluntary, the waiver will be
enforced. Id.
Garcia knowingly and voluntarily waived his right to appeal
in the absence of an upward departure. The district court
admonished him of the effect of the waiver provision, and Garcia
stated that he understood. The court sentenced him at the low
end of the guidelines range. Because there was no upward
departure, Garcia’s appeal is barred by the plain meaning of the
plea agreement. See id. at 746-47. Accordingly, the judgment of
the district court is AFFIRMED.