United States v. Grant

* 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opinion should not be published and is not precedent except under the limited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 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20157
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVE ANTONIO GRANT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:98-CR-44-ALL
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Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Dave Antonio Grant appeals his sentence following his guilty-
plea conviction for possession with intent to distribute marijuana,
a violation of 21 U.S.C. § 841. The district court sentenced Grant
to 120 months of imprisonment, five years of supervised release,
and a $100 special assessment.
Grant contends that his sentence violates the “Rule of
Speciality” because his sentence was based on a larger drug
quantity than the quantity specified in various documents seeking

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his extradition from Jamaica. He also asserts that the district
court erred by enhancing his sentence on the basis of certain
judicial findings of fact at sentencing.
The Government argues that Grant’s plea agreement contains a
waiver of appeal that bars his appeal. Grant argues that the
waiver should not be enforced because it was unknowing,
involuntary, and unconscionable. More particularly, he asserts
that he pleaded guilty to possessing with intent to distribute a
larger quantity of marijuana than the quantity determined by
laboratory testing.
We review de novo whether a waiver provision bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). We
determine whether the waiver was knowing and voluntary and whether
the waiver applies to the circumstances at issue. United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005).
The record reflects that Grant knowingly and voluntarily
waived his right to appeal his sentence, except for a sentence in
excess of the statutory maximum or that was the result of an upward
departure from the Sentencing Guidelines. See United States v.
Cortez, 413 F.3d 502, 503 (5th Cir. 2005); United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005); FED. R. CRIM. P.
11(b)(1)(N). Because Grant’s sentence was not in excess of the
statutory maximum and did not constitute an upward departure from

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the Guidelines, we DISMISS Grant’s appeal as barred by the waiver
contained in the plea agreement.
APPEAL DISMISSED.

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