United States v. Muniz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2009
No. 08-51065
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADON JOSHUA MUNIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-127-ALL
Before HIGGINBOTHAM, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
Adon Joshua Muniz pleaded guilty to one count of possession of an
unregistered firearm. The district court sentenced him to serve 120 months’
imprisonment, which exceeds the advisory guidelines sentencing range. Muniz
contends his sentence is unreasonable. The Government maintains this
challenge is barred by Muniz’ waiver of his appellate rights. Muniz replies that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51065
the Government lost its right to invoke the waiver by standing silent at
sentencing when the district court erroneously informed him that he could
appeal his sentence.
Our court reviews de novo whether the waiver of a right to appeal in a
written plea agreement prevents an appeal from being taken. United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). A review of the record shows: Muniz
knowingly and voluntarily waived his right to appeal his sentence; and the claim
he now raises is barred by the language of the waiver. See United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005). The district court’s related
misstatements at sentencing do not affect the validity of the waiver, and the
Government’s silence does not preclude it from invoking the waiver. See United
States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). Accordingly, consideration
of Muniz’ challenge to his sentence is precluded by the waiver. See id.; see also
United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
DISMISSED.
2