United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 5, 2007
Charles R. Fulbruge III
Clerk
No. 06-10118
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GALLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-205-10
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
William Gallo was convicted of one charge of conspiracy to
distribute cocaine, marijuana, and methamphetamine and sentenced
to serve 168 months in prison. Gallo appeals his conviction and
sentence. He argues that the appellate waiver in his plea
agreement is invalid. He also argues that his counsel was
ineffective at sentencing and that his sentence violated his
Sixth Amendment right to trial by jury under United States v.
Booker, 543 U.S. 220 (2005). The Government seeks to enforce the
waiver.
*
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this opinion should not be published and is not precedent except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. 06-10118
-2-
The record reflects that Gallo knowingly and voluntarily
plead guilty and waived his appellate rights. See United States
v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992). Therefore,
the appeal waiver is valid and bars Gallo’s claims on appeal.
See id.; United States v. White, 307 F.3d 336, 340-43 (5th Cir.
2002). Although Gallo makes a claim of ineffective assistance
for his lawyer’s rescission of the Booker objection at
sentencing, that claim does not go to the plea or waiver itself
and, hence, the waiver bars it. White, 307 F.3d at 340-433.
Relatedly, Gallo’s plea waiver - which waived “claims of
ineffective assistance of counsel” on habeas but allowed
challenge to “the voluntariness of his plea of guilty of this
waiver” on direct appeal - was not overly broad because allowing
challenge to the plea or waiver itself is what matters, and such
a challenge, which can have as its predicate ineffective
assistance, was not barred by the waiver of ineffective
assistance claims on habeas here.
Accordingly, the district court’s judgment is AFFIRMED. The
Government’s motion to dismiss the appeal is DENIED.