United States v. Tucker , 136 F. App'x 700 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2005
Charles R. Fulbruge III
Clerk
No. 03-50710
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY KENT TUCKER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-396-ALL
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Gregory Kent Tucker appeals his sentence for travel with
intent to engage in a sexual act with a juvenile, contending
pursuant to United States v. Booker, 125 S. Ct. 738 (2005), that
he was sentenced in violation of the Sixth Amendment. In his
plea agreement, however, Tucker waived his right to appeal his
sentence on any ground, save ineffective assistance of counsel
and prosecutorial misconduct.
*
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this opinion should not be published and is not precedent except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. 03-50710
-2-
The district court contravened FED. R. CRIM. P. 11(b)(1)(N)
when it failed to advise Tucker that by pleading guilty he was
waiving his right to appeal his sentence. Nevertheless, standing
alone, such an error does not preclude a finding that the waiver
was knowing and voluntary. See United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005). The record of Tucker’s
rearraignment indicates that Tucker read and understood his plea
agreement and that he raised no question regarding the waiver-of-
appeal provision. He is therefore “held to the bargain to which
he agreed, regardless of whether the court specifically
admonished him concerning the waiver of appeal,” and we are
without jurisdiction to entertain his Sixth Amendment challenge.
See id. (internal quotation marks and citation omitted); United
States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).
APPEAL DISMISSED.