Case: 12-41048 Document: 00512276113 Page: 1 Date Filed: 06/17/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2013
No. 12-41048
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAMIRO OLVERA-RICO,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-15-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Ramiro Olvera-Rico appeals the sentence imposed following his guilty plea
to being found in the United States illegally after deportation. Olvera-Rico was
sentenced to 70 months in prison and three years of supervised release. He
contends that the sentence imposed is procedurally and substantively
unreasonable because it includes a supervised release term notwithstanding the
recommendation of U.S.S.G. § 5D1.1(c).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-41048 Document: 00512276113 Page: 2 Date Filed: 06/17/2013
No. 12-41048
The Government moves for dismissal of the appeal because Olvera-Rico’s
claim of error is barred by his appeal waiver. While he has recognized the
existence of the appeal waiver and certified that the Government intends to
enforce the waiver, see United States v. Acquaye, 452 F.3d 380, 382 (5th Cir.
2006), Olvera-Rico has not challenged its validity on appeal, and he has not
asserted that he is appealing based on the exceptions to the appeal waiver.
Accordingly, he has abandoned any argument that the waiver is invalid or
inapplicable. See United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992).
Moreover, a review of the record indicates that Olvera-Rico knowingly and
voluntarily waived his right to appeal his sentence, see United States v. Portillo,
18 F.3d 290, 292 (5th Cir. 1994), and that his challenge to the inclusion of a term
of supervised release in the sentence does not fall within the exceptions to the
waiver.
Although a valid waiver does not implicate our jurisdiction, see United
States v. Story, 439 F.3d 226, 230 (5th Cir. 2006), Olvera-Rico’s appeal of his
sentence is clearly barred by the waiver, and the appeal is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983); 5TH CIR.
R. 42.2. The Government’s motion to dismiss is granted, and its alternative
motion for an extension of time to file a brief is denied as unnecessary.
APPEAL DISMISSED; GOVERNMENT MOTION GRANTED IN PART
AND DENIED AS UNNECESSARY IN PART.
2