United States v. Cervantes-Garcia

* 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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41753
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME CERVANTES-GARCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-97-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jaime Cervantes-Garcia appeals his sentence following his
guilty plea for illegal reentry after deportation. He contends
that he was sentenced in contravention of United States v.
Booker, 125 S. Ct. 738 (2005).
Cervantes-Garcia’s plea agreement contained an express
waiver of his right to appeal on all grounds, except “(a) any
punishment imposed in excess of the statutory maximum; (b) any
upward departure from the guideline range deemed most applicable

-- 1 of 2 --

No. 04-41753
-2-
by the sentencing court; (c) arithmetic errors in the guidelines
calculations; and (d) a claim of ineffective assistance of
counsel that affects the validity of the waiver itself.” Our
review of the record indicates that the waiver was knowing and
voluntary and that under its plain language, it bars review of
Cervantes-Garcia’s Booker claim. See United States v. Bond, 414
F.3d 542, 545-46 (5th Cir. 2005). Cervantes-Garcia’s appeal is
therefore dismissed.
APPEAL DISMISSED.

-- 2 of 2 --