United States v. Rodriguez ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
Charles R. Fulbruge III
Clerk
No. 03-51113
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUDELIO RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-650-3-AML
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Eudelio Rodriguez appeals from his sentence for conspiracy
to possess marijuana with intent to distribute, in violation of
21 U.S.C. §§ 841(a)(1) and 846. Rodriguez asserts that his
waiver of appeal is invalid because the Government violated the
plea agreement. This court reviews de novo whether a waiver of
appeal bars an appeal. United States v. Baymon, 312 F.3d 725,
727 (5th Cir. 2002).
*
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this opinion should not be published and is not precedent except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.
No. 03-51113
-2-
Rodriguez contends that the Government violated its
agreement by supporting the probation officer’s recommendation to
deny him credit for acceptance of responsibility under U.S.S.G.
3E1.1(a). This lacks merit because the record shows that the
Government promised not to oppose the adjustment only if the
probation officer recommended it in the presentence report. At
Rodriguez’s sentencing hearing, this was made clear. Thus
Rodriguez’s reliance on United States v. Keresztury, 293 F.3d
750, 755-57 (5th Cir. 2002), is misplaced.
The record shows that Rodriguez knowingly and voluntarily
waived his right to appeal his sentence. See United States v.
Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994); see also United
States v. Dees, 125 F.3d 261, 269 (5th Cir. 1997). Accordingly,
Rodriguez’s waiver of appeal is enforceable and bars the present
appeal.
APPEAL DISMISSED.