United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-40186
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN PABLO ROBLES-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-613-ALL
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ON PETITION FOR REHEARING
Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that the petition for rehearing filed by
appellant is GRANTED. The panel opinion, dated February 14,
2007, is withdrawn, and the following opinion is substituted:
Juan Pablo Robles-Hernandez pleaded guilty to being found in
the United States without having obtained permission to re-enter
and after having been removed subsequent to a conviction for an
aggravated felony. In his plea agreement, Robles-Hernandez
waived his right to appeal his conviction and sentence except for
*
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this opinion should not be published and is not precedent except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. 05-40186
-2-
a sentence above the statutory maximum or an upward departure
from the Sentencing Guidelines.
Robles-Hernandez argues that the waiver of his right to
appeal his sentence is unenforceable because he entered his
guilty plea prior to the decision in United States v. Booker,
543 U.S. 220 (2005), and may have waived rights of which he was
unaware. Robles-Hernandez concedes that this argument is
foreclosed by United States v. Burns, 433 F.3d 442, 450-51 (5th
Cir. 2005), but he raises it here to preserve it for further
review.
Notwithstanding his concession that his waiver of appeal is
enforceable, Robles-Hernandez seeks to appeal his sentence.
Robles-Hernandez does not suggest that either of the conditions
supporting the specific exceptions to the waiver exist.
Accordingly, Robles-Hernandez may not appeal his sentence. The
judgment of the district court is AFFIRMED. See United States v.
Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
Robles-Hernandez’s pro se motion for the appointment of
counsel is DENIED.