     Case: 12-41278       Document: 00512255984         Page: 1     Date Filed: 05/29/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 29, 2013
                                     No. 12-41278
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

DARIO CIRINO DOMINGUEZ, also known as Dario Dominguez Cirino, also
known as Dario Cirino-Dominguez, also known as Eduardo Dominquez Cirino,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-252-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dario Cirino Dominguez (Cirino) appeals the sentence imposed following
his guilty plea to being found in the United States illegally after deportation.
Cirino was sentenced to 90 months in prison and to one year of supervised
release.     He contends that the sentence imposed is procedurally and
substantively unreasonable because it includes a supervised release term
notwithstanding the recommendation of U.S.S.G. § 5D1.1(c).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-41278     Document: 00512255984      Page: 2   Date Filed: 05/29/2013

                                  No. 12-41278

      The Government moves for dismissal of the appeal because Cirino’s claim
of error is barred by his appeal waiver. While he has recognized the existence
of the appeal waiver and certified that the Government intends to enforce the
waiver, see United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006), Cirino
has not challenged its validity on appeal nor asserted that he is appealing based
on the exceptions to the appeal waiver. Accordingly, he has abandoned any
argument that the waiver is invalid or inapplicable. See United States v. Green,
964 F.2d 365, 371 (5th Cir. 1992). Moreover, a review of the record indicates
that Cirino knowingly and voluntarily waived his right to appeal his sentence,
see United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994), and that his
challenge to the inclusion of a term of supervised release in the sentence does
not fall within the exceptions to the waiver.
      Although a valid waiver does not implicate our jurisdiction, see United
States v. Story, 439 F.3d 226, 230 (5th Cir. 2006), Cirino’s appeal of his sentence
is clearly barred by the waiver, and the appeal is dismissed as frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983) (per curiam); 5TH CIR.
R. 42.2. The Government’s motion to dismiss is granted, and its alternative
motion for an extension of time to file a brief is denied as unnecessary.
      APPEAL DISMISSED; GOVERNMENT MOTION GRANTED IN PART
AND DENIED IN PART AS UNNECESSARY.




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