Summary Calendar UNITED STATES OF AMERICA v. Kyle Merchant

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21007
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KYLE MERCHANT
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-368-3
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Kyle Merchant appeals his guilty-plea conviction of aiding
and abetting in the possession with intent to distribute 50 or
more grams of cocaine base. He seeks to challenge his sentence
based on United States v. Booker, 543 U.S. 220 (2005).
Merchant asserts that the merits of his appeal should be
addressed despite an appeal waiver in his plea agreement. He
argues that the appeal waiver, which was entered before the
Supreme Court issued its decision in Booker, was not informed and

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No. 03-21007
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voluntary because the waiver was based on the erroneous advice
that the Sentencing Guidelines were mandatory and that the
district court was required to issue a sentence in conformity
with those Guidelines. This argument is unavailing. See United
States v. Burns, 433 F.3d 442, 450-51 (5th Cir. 2005).
Merchant’s appeal waiver is enforceable.
As part of his plea agreement, Merchant waived his right to
appeal on any ground set forth in 18 U.S.C. § 3742, with the
exception of an upward departure. Merchant’s sentence did not
constitute an upward departure. See United States v. McKinney,
406 F.3d 744, 746-47 (5th Cir. 2005). Accordingly, we dismiss
Merchant’s appeal because it is barred by the waiver contained in
the plea agreement.
APPEAL DISMISSED.

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