United States v. Harrington

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-20523
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH HAROLD HARRINGTON,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-707-ALL
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Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Harold Harrington appeals from his sentence for two
counts of armed bank robbery in violation of 18 U.S.C. § 2113(a),
(d) and one count of using and carrying a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A). Harrington argues that he may challenge his
sentence despite his waiver of his right to appeal.
This court reviews de novo whether a waiver of appeal bars
an appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir.
*
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that this opinion should not be published and is not precedent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. 03-20523
-2-
2002). Harrington’s sentence did not exceed the statutory
maximum, and the Government had requested that the district court
depart upward from the guideline range. Neither of the two
exceptions to the waiver of appeal applies in this case.
Harrington 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). Harrington’s waiver of appeal is
enforceable and bars the present appeal.
APPEAL DISMISSED.