United States v. Garcia-Hernandez

* 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this opinion should not be published and is not precedent except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
June 21, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50639
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS JAIME GARCIA-HERNANDEZ,
also known as Jesus Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-50-3-SS
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Jaime Garcia-Hernandez (Garcia) appeals the sentence
imposed following his guilty-plea conviction for conspiracy to
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846. He challenges the district court’s calculation of his
offense level under the United States Sentencing Guidelines. He
does not address his waiver, pursuant to his plea agreement, of
his right to appeal.

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No. 04-50639
-2-
The record demonstrates that Garcia’s appeal waiver was
informed and voluntary. See United States v. Portillo, 18 F.3d
290, 292-93 (5th Cir. 1994); United States v. Melancon, 972 F.2d
566, 567 (5th Cir. 1992). The only appeal rights reserved by
Garcia were the right to appeal any upward departure imposed
pursuant to U.S.S.G. § 5K2.0 and the right to raise
constitutional challenges regarding the effectiveness of counsel
or regarding prosecutorial misconduct. Garcia’s challenges to
the district court’s calculation of his offense level are not
appeal bases excepted from the waiver. See United States v.
Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).
Although the Government asserted the appeal waiver in its
brief, defense counsel did not file a reply brief. He has
therefore failed to address the threshold issue before this
court. Garcia’s appeal is therefore without arguable merit and
is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
APPEAL DISMISSED AS FRIVOLOUS.

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