United States v. Ibarra , 145 F. App'x 493 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-41300
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE IBARRA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-234-3
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Ibarra appeals the sentence imposed following his
guilty-plea conviction for possession with intent to distribute
more than 500 grams of cocaine. Ibarra argues generally that his
sentence violates the Sixth Amendment rule announced in United
States v. Booker, 125 S. Ct. 738 (2005), and also challenges the
imposition of an enhancement based on his role as a leader or
organizer pursuant to U.S.S.G. § 3B1.1, apparently both under
Booker and on grounds of factual sufficiency.
*
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this opinion should not be published and is not precedent except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. 04-41300
-2-
As the Government correctly argues, Ibarra signed a written
plea agreement in which he expressly waived his right to appeal
his sentence, reserving the right to appeal only a sentence
imposed above the statutory maximum or an upward departure from
the Sentencing Guidelines. Although Ibarra failed to address the
validity and scope of the waiver, we exercise our discretion to
examine the waiver sua sponte. See United States v. Martinez,
263 F.3d 436, 438 (5th Cir. 2001). The transcript of the guilty
plea hearing demonstrates that Ibarra’s appeal waiver was both
knowing and voluntary and is, therefore, enforceable. See United
States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002).
Further, the waiver plainly bars Ibarra’s appeal. Neither
Ibarra’s Booker challenge nor his challenge to the sufficiency of
the evidence supporting the § 3B1.1 enhancement falls within the
scope of the two exceptions to the waiver. See United States v.
Bond, F.3d , No. 04-41125, 2005 WL 1459641, at *3 (5th
Cir. June 21, 2005) (sentence imposed in violation of Booker rule
does not constitute sentence in excess of statutory maximum);
United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005)
(sentence imposed in violation of Booker rule does not constitute
upward departure); United States v. Gaitan, 171 F.3d 222, 223-24
(5th Cir. 1999) (a § 3B1.1 enhancement is not an upward
departure).
As Ibarra’s appeal waiver clearly precludes this appeal, and
as Ibarra failed to raise any meritorious argument that the
No. 04-41300
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waiver was invalid or otherwise inapplicable, we DISMISS the
appeal as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983).
In light of the foregoing, we hereby ORDER Ibarra’s counsel,
Philip T. Cowen, to show cause why this court should not impose
sanctions or otherwise discipline him for pursuing the appeal in
light of his client’s clear and unambiguous appeal waiver and for
failing to address the waiver in either the initial or reply
brief. See Gaitan, 171 F.3d at 223; FED. R. APP. P. 46(c). Cowen
shall have 30 days from the date of this opinion to file a
response.
APPEAL DISMISSED AS FRIVOLOUS; COUNSEL ORDERED TO SHOW CAUSE
WITHIN 30 DAYS WHY SANCTIONS SHOULD NOT BE IMPOSED.