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

                                                                  FILED
                                                                October 21, 2008
                                No. 07-51372
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

CARLOS GUERRERO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 2:06-CR-961-2


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
      Carlos Guerrero appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute 100 kilograms or
more of marijuana. Guerrero argues that the government violated the terms of
his plea agreement by failing to recommend a sentence below the statutory
minimum pursuant to the application of the safety valve provisions of 18 U.S.C.
§ 3553(f) and U.S.S.G. § 5C1.2, further causing the district court to plainly err
by imposing the sentence without considering the safety valve. The Government


      *
      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should not be published and is not precedent except under the limited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. 07-51372

asserts that Guerrero’s appeal is barred by the appeal waiver in his plea
agreement.
      In the appeal waiver, Guerrero waived his right to appeal his conviction
and sentence on any ground except for prosecutorial misconduct, ineffective
assistance of counsel, and a sentence above the statutory maximum. The record
shows that the appeal waiver was knowing and voluntary and is enforceable.
See United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Guerrero
asserts that the appeal waiver is not applicable because the Government
violated the plea agreement and committed prosecutorial misconduct by not
affirmatively seeking the application of the safety valve provisions.
      The plea agreement required that the Government not oppose the
application of the safety valve provisions if Guerrero qualified, but did not
require the Government to request their application. That the Government did
not request application of the safety valve provisions did not violate the
provision of the plea agreement requiring the parties to request that the court
consider the provisions of the Sentencing Guidelines in calculating the sentence.
The probation officer considered the application of the safety valve provisions in
the presentence report (PSR) and determined that Guerrero had not qualified
for them. Neither Guerrero nor the Government objected to the PSR, and the
district court adopted the findings in the PSR, thereby adopting the
consideration and rejection of the application of the safety valve provisions.
Guerrero has not shown that the Government breached the plea agreement.
Furthermore, as Guerrero has not shown that the prosecutor engaged in any
improper behavior, he has not shown that the Government committed
prosecutorial misconduct. See United States v. Fields, 483 F.3d 313, 358-60 (5th
Cir. 2007), cert. denied, 128 S. Ct. 1065 (2008). As Guerrero’s claim on appeal
does not fit into any exceptions to the appeal waiver, the appeal waiver applies




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                                No. 07-51372

to the circumstances at issue and bars Guerrero’s appeal. See United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      AFFIRMED.




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