                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       October 4, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-10496
                             Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

DANIEL BELMONTE-MARTIN,
also known as Jose Angel Rivera,
also known as Jose Angel Rivera Martinez,
also known as Raul Trejo,

                                          Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                     USDC No. 3:03-CR-359-ALL-D
                        --------------------

Before JOLLY, JONES and OWEN, Circuit Judges.

PER CURIAM:*

      Daniel   Belmonte-Martin     (“Belmonte”)     appeals   the    sentence

imposed following his guilty plea to illegal reentry into the

United    States     following   deportation.       This    court    remanded

Belmonte’s case for the limited purpose of clarifying the record as

to   whether   the   district    court   accepted   or   rejected   the   plea

agreement at Belmonte’s sentencing.         The district court has issued

a memorandum and order stating that it implicitly accepted the plea

      *
       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this opinion should not be published and is not precedent except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. 04-10496
                                   -2-

agreement.    Now this court must determine whether the sentencing

issues raised by Belmonte on appeal are barred by the appellate-

waiver provision contained in his plea agreement.

     Belmonte raises the following sentencing issues on appeal:

(1) whether the district court violated Belmonte’s Sixth Amendment

rights by imposing a sentence enhancement based upon the court’s

determination that Belmonte’s prior burglary conviction constituted

a   crime    of   violence   under   U.S.S.G.   §   2L1.2(B)(1)(A)(ii);

(2) whether the district court plainly erred in sentencing Belmonte

to more than two years under 8 U.S.C. § 1326 when the fact of his

prior conviction had not been pleaded in the indictment or proven

to a jury beyond a reasonable doubt; and (3) whether Belmonte’s

sentence is unconstitutional, in light of United States v. Booker,

125 S. Ct. 738 (2005), because he was sentenced under a mandatory

guideline scheme.    Belmonte asserts that the plea agreement, which

reserved the right to appeal a sentence in excess of the statutory

maximum, does not bar the above claims because his sentence exceeds

the “statutory maximum” as that term is defined in Blakely v.

Washington, 124 S. Ct. 2531 (2004).

     By its plain language, Belmonte’s knowing and voluntary appeal

waiver bars his claims as he was not sentenced above the statutory

maximum, that is, “the upper limit of punishment that Congress has

legislatively specified for violation of a statute.”        See United

States v. Bond, __ F.3d __, No. 04-41125, 2005 WL 1459641, at ** 3-
                           No. 04-10496
                                -3-

4 (5th Cir. June 21, 2005); 8 U.S.C. § 1326(b)(2).   Accordingly,

his appeal is DISMISSED.
