United States v. Martinez

No. 98-20907
-1-
* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20907
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-12-5
--------------------
February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Frank Martinez entered a guilty plea to one count of
conspiracy to possess with the intent to distribute cocaine, and
was sentenced to 135 months' imprisonment. He appeals his
conviction and sentence. Martinez has also moved for leave to
file a reply brief out of time. The motion is GRANTED.
Martinez executed an informed and voluntary waiver of his
right of appeal, with the exception of his right to appeal a
sentence imposed in excess of the statutory maximum or an upward
departure from the sentencing guidelines that was not requested
by the Government. See United States v. Portillo, 18 F.3d 290,

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No. 98-20907
-2-
292 (5th Cir. 1994). The issues raised in this appeal do not
fall within those exceptions, and therefore will not be reviewed.
This appeal is without arguable merit and thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is
therefore dismissed.
DISMISSED.

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