United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 05-20342
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO JAIME TREVINO-FLORES, also know as Prieto,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-437-3
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mario Jaime Trevino-Flores (Trevino) appeals the sentence
imposed by the district court following his guilty plea
conviction for aiding and abetting in the possession with the
intent to distribute marijuana. As his sole argument on appeal,
Trevino argues that the district court improperly considered his
criminal history in determining the amount of his downward
departure under U.S.S.G. § 5K1.1.
*
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this opinion should not be published and is not precedent except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. 05-20342
-2-
The Government moves to dismiss Trevino’s appeal on the
basis of the plea agreement, which contained a waiver-of-appeal
provision providing that Trevino waived his right to appeal
except an “upward departure from the USSG sentencing issues
only.”
The record reflects that Trevino’s waiver was knowing and
voluntary. See FED. R. CRIM. R. 11(b)(1)(N); United States v.
Robinson, 187 F.3d 516, 518 (5th Cir. 1999). Giving the language
in the waiver its ordinary and natural meaning, see United States
v. Cortez, 413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct.
502 (2005), Trevino reserved only the right to appeal a sentence
that represented an upward departure from the recommended
Sentencing Guidelines range. Trevino cites to no authority
supporting his assertion that the term “upward departure” could
also be a reference to a sentence greater than that which he
subjectively expected.
Because Trevino’s issue on appeal does not fall within the
preserved exclusion to the valid waiver of appeal, it is barred.
The Government’s motion to dismiss the appeal is denied as moot
because a valid appeal waiver does not implicate our
jurisdiction. United States v. Story, 439 F.3d 226, 230-31 (5th
Cir. 2006).
AFFIRMED; MOTION DENIED.