United States v. Terrazas-Acosta ( 2000 )


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  •                             No. 99-50957
    -1-
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 99-50957
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RENE TERRAZAS-ACOSTA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. EP-99-CR-713-1-DB
    --------------------
    April 13, 2000
    Before WIENER, DeMOSS, and PARKER, Circuit Judges.
    PER CURIAM:*
    Rene Terrazas-Acosta appeals the sentence imposed following
    his guilty-plea conviction of illegal reentry into the United
    States following deportation in violation of 
    8 U.S.C. §§ 1326
    (a)
    & (b)(2).   He argues that the district court mistakenly believed
    that it lacked the authority to depart downward based on his
    cultural assimilation into the United States.    The record
    indicates that the district court recognized its authority to
    depart downward based on cultural assimilation but determined
    that a downward departure was not warranted based on the facts of
    *
    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    that this opinion should not be published and is not precedent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. 99-50957
    -2-
    the case.   Accordingly, this court lacks jurisdiction to review
    the district court’s decision.    See United States v. Reyes-Nava,
    
    169 F.3d 278
    , 280 (5th Cir. 1999).
    This court notes that in his plea agreement Terrazas-Acosta
    agreed to waive the right to appeal his sentence except in
    certain circumstances which do not exist here.    However, the
    Government makes no mention on appeal of this waiver.    Nor has
    the transcript of the plea hearing been included in the appellate
    record, which precludes this court from determining whether or
    not the waiver was informed and voluntary.    The knowing and
    voluntary waiver in a plea agreement of the right to appeal has
    been approved by this court.     See United States v. Portillo, 
    18 F.3d 290
    , 292-93 (5th Cir. 1994); United States v. Melancon, 
    972 F.2d 566
    , 567 (5th Cir. 1992).    This court is at a loss to
    understand why the Government has not raised the issue of waiver
    in this case, and why defense counsel did not include a
    transcript of the Rule 11 hearing in the record.
    APPEAL DISMISSED.
    

Document Info

Docket Number: 99-50957

Filed Date: 4/14/2000

Precedential Status: Non-Precedential

Modified Date: 12/21/2014