United States v. Napoles , 168 F. App'x 635 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-40256
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS NAPOLES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-191-1
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Napoles is appealing his sentence imposed following his
guilty plea convictions for conspiracy to money launder and
possession with intent to distribute more than 500 grams of
cocaine. Napoles was sentenced to concurrent terms of
imprisonment of 240 months for the money laundering offense and
300 months for the drug-trafficking offense.
Napoles argues for the first time on appeal that the
district court violated his Sixth Amendment rights by enhancing
*
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this opinion should not be published and is not precedent except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. 04-40256
-2-
his sentence based on facts that were not admitted by him or
found by a jury beyond a reasonable doubt. He argues that this
was constitutional error in light of the holding in United States
v. Booker, 543 U.S. 220 (2005).
The Government argues that the appeal should be dismissed
because, as part of his plea agreement, Napoles waived his right
to appeal his sentence or the manner in which it was determined.
Napoles did not address the waiver in his brief or in a reply
brief.
The record reflects that Napoles knowingly and voluntarily
waived his right to appeal his sentence. See United States v.
Burns, 433 F.3d 442, 450 (5th Cir. 2005); United States v. Bond,
414 F.3d 542, 545-46 (5th Cir. 2005); United States v. Cortez,
413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502(2005). Because the waiver is valid, the appeal is dismissed as
frivolous. See 5TH CIR. R. 42.2.
Counsel Everto A. Villarreal is warned that pursuing an
appeal despite a valid appeal waiver provision in the plea
agreement and failing to address the waiver in a reply brief
after it was raised by the Government in its brief is a needless
waste of judicial resources and will invite sanctions. See
United States v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.