United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2007
Charles R. Fulbruge III
Clerk
No. 04-41746
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL HERNANDEZ-PINEDA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-214-1
Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Abel Hernandez-Pineda (Hernandez) appeals the 108-month
sentence imposed following his guilty plea conviction for
conspiracy to possess with intent to distribute approximately 12
kilograms of heroin. Hernandez argues that the district court
erred by denying an offense-level reduction for his minimal role in
the offense. The government asserts that Hernandez’s appeal is
*
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opinion should not be published and is not precedent except under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.
barred by a waiver-of-appeal provision in his plea agreement.
At rearraignment, Hernandez acknowledged the existence of the
plea agreement and that he was waiving his right to appeal his
sentence. He also stated that counsel had read the plea agreement
to him in Spanish, that he understood its terms, and that he was
entering into the plea voluntarily. The district court also
advised Hernandez that he was waiving his right to appeal.
Hernandez reserved only the right to appeal a sentence in excess of
the statutory maximum or a sentence that represented an upward
departure from the Sentencing Guidelines, which had not been
requested by the United States.
As the government urges, Hernandez knowingly and voluntarily
waived his right to appeal, and as neither of the waiver’s
exceptions applies to the sole claim made in the instant appeal,
Hernandez’s appeal is barred by the waiver contained in the plea
agreement. See United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005); United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
Appellant presents no argument to the contrary.**
AFFIRMED.
**
In any event, we also agree with the government’s alternative
argument, that Hernandez’s sole claim on appeal, that the district
court “abused its discretion, when it refused to make a downward
departure, based on appellant’s minimal participation,” is wholly
without merit. That was a matter on which appellant bore the
burden of proof. We cannot say that the district court’s denial of
appellant’s claim of minimal participation was either clearly
erroneous, or an abuse of discretion, or unreasonable (or resulted
in an unreasonable sentence).