                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 1, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-50722
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HOMERO RODRIGUEZ, JR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. DR-02-CR-683-2-WWJ
                       --------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Homero Rodriguez, Jr., (“Rodriguez”), appeals the sentence

imposed by the district court following his guilty plea

conviction for conspiracy to possess with intent to distribute

more than 50 kilograms of marijuana.   Rodriguez argues that the

district court erred by not determining the net weight of the

marijuana attributed to him.   For the first time on appeal,

Rodriguez argues that the district court erred by not granting

him a downward departure from his sentencing guidelines range.

     *
        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that this opinion should not be published and is not precedent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. 03-50722
                                 -2-

The Government asserts that Rodriguez’s appeal is barred by the

appeal waiver set forth in Rodriguez’s plea agreement.

     Because Rodriguez’s appeal waiver was not mentioned during

his rearraignment by either the magistrate judge or the

Government, FED. R. CIV. P. 11(b)(1)(N) was not satisfied and the

waiver cannot be held to have been knowing and voluntary.     See

United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).

Accordingly, we can entertain the merits of Rodriguez’s appeal.

     Rodriguez’s argument that the district court did not

determine the net weight of the marijuana attributed to him is

refuted by the record.   Furthermore, because Rodriguez was

sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, the

district court correctly determined that the weight of the

marijuana attributed to Rodriguez did not affect his sentence and

his argument is moot.    See United States v. Mankins, 135 F.3d

946, 950 (5th Cir. 1998).   Because the record does not indicate

that the district court erroneously believed that it lacked the

authority to make a downward departure, we lack jurisdiction to

consider Rodriguez’s downward departure argument.    See United

States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).

Accordingly, we AFFIRM Rodriguez’s sentence and DISMISS his

appeal to the extent that he argues that the district court

should have made a downward departure.

     AFFIRMED IN PART, DISMISSED IN PART.
