                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 7, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-50232
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TAMMY HEMLER, also known as Tammy Rich,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 1:04-CR-175-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Tammy Hemler appeals the restitution order imposed by the

district court following her guilty-plea conviction for

misprision of a felony, a violation of 18 U.S.C. § 4.      The

district court sentenced Hemler to five years of probation, six

months of home detention, $5,000,000 in restitution, and a $100

special assessment.

     Hemler contends that (1) 18 U.S.C. § 3663A does not

authorize an order of restitution for offenses such as misprision


     *
       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this opinion should not be published and is not precedent except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. 05-50232
                                -2-

of a felony; (2) the order of restitution should be vacated

pursuant to United States v. Booker, 543 U.S. 220 (2005); and

(3) the district court abused its discretion in ordering

restitution in the amount of $5,000,000.

     Hemler concedes that her plea agreement contained an appeal

waiver; however, she asserts that the waiver does not bar her

appeal.   Hemler asserts that her waiver of appeal was not knowing

and voluntary because the scope of the restitution provision in

her plea agreement allegedly is ambiguous.    She also asserts that

the terms of the waiver provision do not encompass an order of

restitution pursuant to § 3663A.   Finally, she asserts that a

waiver of appeal does not bar an appeal of an illegal sentence.

     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 Hemler knowingly and voluntarily

waived her right to appeal her sentence, except for 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).   Because Hemler’s

sentence did not constitute an upward departure from the
                          No. 05-50232
                               -3-

Guidelines, we DISMISS Hemler’s appeal as barred by the waiver

contained in the plea agreement.

     APPEAL DISMISSED.
