United States v. Anguiano , 197 F. App'x 342 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 5, 2006
Charles R. Fulbruge III
No. 05-51353 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO ANGUIANO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
No. 5:04-CR-371-1
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Santiago Anguiano pleaded guilty, pursuant to a written plea
agreement, of conspiracy to possess with intent to distribute
100 kilograms or more of marihuana. He argues on appeal that the
government agreed in the plea agreement to withdraw its request
that the sentence be enhanced pursuant to 21 U.S.C. § 841(b)(1)(B)
based on his prior drug felony convictions and that the district
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
court and the government violated the plea agreement when the court
increased his sentence pursuant to the sentencing guidelines based
on those convictions. There is, however, no evidence in the record
to support an objectively reasonable understanding by Anguiano that
the plea agreement precluded guideline enhancements based on the
convictions. See United States v. Chagra, 957 F.2d 192, 194 (5th
Cir. 1992).
Anguiano contends the district court erred in using his prior
drug convictions to calculate his guideline sentencing range be-
cause 21 U.S.C. § 851 requires the government to file an informa-
tion stating that the convictions would be relied on to increase
his sentence. He further argues that the court erroneously regard-
ed the sentencing guidelines as mandatory, rather than advisory,
and that his sentence is unconstitutional under United States v.
Booker, 543 U.S. 220 (2005).
The plea agreement included a provision in which Angiano
waived his right to appeal his sentence on any ground other than
ineffective assistance of counsel or prosecutorial misconduct. Be-
cause the government has invoked the appeal waiver, because Anguia-
no does not contend that the waiver was not made knowingly or vol-
untarily, and because his arguments fall within the scope of the
waiver, we are barred from considering these issues. See United
States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006); United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
AFFIRMED.
2