                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 7, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30862
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ERIC GLYNN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                   USDC No. 3:04-CR-24-ALL-D
                      --------------------

Before REAVLEY, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Eric Glynn appeals the restitution order imposed by the

district court following his conviction on his guilty plea to

one count of knowing use, with intent to deceive, of a social

security number that was not been assigned to him by the

Commissioner of Social Security, a violation of 42 U.S.C.

§ 408(a)(7).   The district court sentenced Glynn to four years of

probation, $9,277 in restitution, and a $100 special assessment.




     *
       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this opinion should not be published and is not precedent except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. 04-30862
                                -2-

     Glynn contends that (1) he did not admit to the amount of

loss or that he owed restitution in any amount to General Motors

Acceptance Corporation (“GMAC”); (2) the district court lacked

statutory authority to order him to make restitution to GMAC;

(3) the district court did not consider the factors in 18 U.S.C.

§ 3663(a)(1) when it ordered restitution; and (4) the district

court did not require the Government to meet its burden of proof

regarding the amount of restitution.

     Glynn concedes that his plea agreement contained an appeal

waiver; he asserts, however, that the waiver does not bar this

appeal.   Glynn argues that because the plea agreement did not

state the amount of restitution, the waiver of appeal could not

have been entered knowingly and voluntarily.   Additionally, Glynn

argues that the waiver does not bar the instant appeal because he

reserved the right to appeal any punishment in excess of the

statutory maximum and the $9,277 order of restitution exceeds the

amount allowed by 18 U.S.C. § 3663(b).

     We review de novo whether a waiver provision bars an appeal.

United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).      We

determine whether the waiver was knowing and voluntary and

whether the waiver applies to the circumstances at issue.     United

States v. Bond, 414 F.3d 542, 2005 WL 1459641 at *2 (5th Cir.

June 21, 2005).

     The record reflects that Glynn knowingly and voluntarily

waived his right to appeal his sentence, except for a sentence
                            No. 04-30862
                                 -3-

that was above the statutory maximum and a sentence that was the

result of an upward departure from the Sentencing Guidelines.

See United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005);

United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005);

FED. R. CRIM. P. 11(b)(1)(N).

     Glynn’s sentence did not exceed the statutory maximum and

did not constitute an upward departure from the guidelines.

See Cortez 413 F.3d at 503; Bond, 414 F.3d 542, 2005 WL 1459641

at *2-*3.   Accordingly, we DISMISS Glynn’s appeal because it is

barred by the waiver contained in the plea agreement.

     APPEAL DISMISSED.
