United States v. Smith

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2007

Charles R. Fulbruge III
Clerk
No. 06-10466
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MARK A SMITH

Defendant - Appellant

--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 7:05-CR-3
--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Mark A. Smith appeals from the sentence imposed following

his guilty plea conviction for being a felon in possession of a

firearm. Smith’s plea agreement contained an appeal waiver,

which the Government seeks to enforce. Smith’s attempt to

construe the sentencing court’s statements regarding his right to

appeal as an interpretation of the appeal waiver provision lacks

merit. The sentencing court’s erroneous statements regarding

Smith’s right to appeal did not negate an otherwise knowing and

voluntary waiver. See United States v. Gonzalez, 259 F.3d 355,

*
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this opinion should not be published and is not precedent except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. 06-10466
-2-

358 (5th Cir. 2001). Moreover, the Government has not waived

enforcement of that waiver. See United States v. Acquaye, 452

F.3d 380, 382 (5th Cir. 2006); United States v. Melancon, 972

F.2d 566, 568 (5th Cir. 1992). Accordingly, Smith’s appeal

seeking to challenge the district court’s application of a

U.S.S.G. § 2K2.1(b)(5) adjustment is barred by his appeal waiver.

See Melancon, 972 F.2d at 568.

AFFIRMED.