Summary Calendar UNITED STATES OF AMERICA v. Freddie Lee Kelly

* 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that this opinion should not be published and is not precedent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. 99-51164
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FREDDIE LEE KELLY
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-201-ALL-OG
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September 5, 2000
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Freddie Lee Kelly appeals his sentence following his guilty-
plea conviction for possessing with the intent to distribute
cocaine base. Kelly asserts that the Government breached the
plea agreement because its promised recommendation that Kelly be
sentenced at the bottom of the applicable guideline range was
vague, poorly delivered, and ambiguous with respect to which
guideline range was applicable. Kelly requests that this case be
remanded for resentencing before a different district court judge
at a hearing during which the Government would be required to

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No. 99-51164
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recommend a sentence at the bottom end of the 168-to-210-month
guideline range.
As part of his written plea agreement with the Government,
Kelly agreed to waive his right to appeal his sentence, except
with respect to an upward departure from the applicable guideline
range. At his rearraignment hearing, the magistrate judge
personally addressed Kelly and admonished him regarding his
waiver of appeal; Kelly stated that he understood the waiver.
Thus, the record shows that Kelly knowingly and voluntarily
waived his right to appeal his sentence. See United States v.
Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).
Because Kelly’s sentence was not based upon an upward
departure from the applicable guideline range and because Kelly’s
appeal is solely a challenge to his sentence, this appeal is
DISMISSED as waived.

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