United States v. Popoca , 115 F. App'x 213 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-20095
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO POPOCA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-715-7
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Armando Popoca appeals the sentence imposed following his
guilty-plea conviction for conspiracy to transport and harbor
unlawful aliens for purposes of commercial advantage and private
gain in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (II). He
argues that his sentence should be vacated in view of Blakely v.
Washington, 124 S. Ct. 2531 (2004). As part of his plea
agreement, Popoca waived the right to appeal his sentence “except
. . . a sentence imposed above the statutory maximum and an
*
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this opinion should not be published and is not precedent except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. 04-20095
-2-
upward departure from the sentencing guidelines not requested by
the United States.” At the rearraignment hearing, the district
court expressly advised Popoca of the waiver provision, and
Popoca stated that he understood and did not express confusion or
ask any questions concerning the waiver provision. Therefore,
Popoca knowingly and voluntarily waived the right to appeal his
sentence, and the waiver is valid and enforceable. See United
States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). Even if
Popoca’s Blakely claim is not precluded by the waiver provision,
the issue is foreclosed by this court’s decision in United States
v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition for
cert. filed (U.S. July 14, 2004)(No. 04-5263).
AFFIRMED.