     Case: 12-40935       Document: 00512318220           Page: 1    Date Filed: 07/23/2013




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

                                                                              FILED
                                                                             July 23, 2013
                                     No. 12-40935
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JULIO ALBERTO CHAPA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-217-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Julio Alberto Chapa pleaded guilty, pursuant to a written plea
agreement, to one count of conspiring to possess with intent to distribute more
than 1,000 kilograms of marijuana. Within the plea agreement, Chapa waived
his right to appeal or to file a postconviction challenge to his conviction or
sentence, although he reserved his right to challenge a sentence exceeding the
statutory maximum or an upward sentencing departure not requested by the

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-40935       Document: 00512318220    Page: 2   Date Filed: 07/23/2013

                                   No. 12-40935

Government. The district court ultimately imposed a sentence of 262 months
in prison, at the bottom of the applicable guidelines range, and a five-year term
of supervised release.
      On appeal, Chapa asserts that the district court erred in determining
that he was an organizer or leader of the conspiracy, which finding resulted in
a four-level increase to Chapa’s base offense level. The Government has moved
to dismiss the case in light of the waiver-of-appeal provision in the plea
agreement; alternatively, the Government requests an extension of time to file
an appellate brief. Chapa does not oppose the Government’s motion, and he
has not submitted a reply brief.
      The sole appellate issue raised by Chapa does not fall within the listed
exceptions to the appeal waiver. Nothing in the record indicates that Chapa’s
waiver of his right to appeal was anything other than knowing and voluntary.
See United States v. McKinney, 406 F.3d 744, 746 & n.2 (5th Cir. 2005). The
Government did not breach the plea agreement. Therefore, the appeal waiver
bars consideration of Chapa’s appellate issues. Although a valid waiver does
not implicate our jurisdiction, see United States v. Story, 439 F.3d 226, 230 (5th
Cir. 2006), Chapa’s appeal of his sentence is clearly barred by the waiver. As
a result, the Government’s motion to dismiss the appeal is GRANTED, and the
appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2. The Government’s
alternative motion to extend the time to file its brief is DENIED as moot.




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