     Case: 12-40439       Document: 00512331977           Page: 1    Date Filed: 08/05/2013




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

                                                                              FILED
                                                                            August 5, 2013
                                     No. 12-40439
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CLAUDIO BARRIENTOS-RAMIREZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-776-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Claudio Barrientos-Ramirez appeals the sentence imposed following his
guilty plea conviction for being found unlawfully in the United States following
deportation in violation of 8 U.S.C. § 1326. He contends that his sentence is
procedurally and substantively unreasonable because: (1) the district court
erred when it denied him a three-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1; (2) the district court clearly erred

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-40439    Document: 00512331977       Page: 2   Date Filed: 08/05/2013

                                 No. 12-40439

in finding that he obstructed justice by alleging that he was assaulted and
harassed by United States Border Patrol agents and that the obstruction was
related to his offense of conviction; (3) the district court considered an
irrelevant factor and gave improper weight to relevant factors; and (4) his
sentence violates the sentencing goals set forth in 18 U.S.C. § 3553(a) because
it was based on an alleged, uncharged crime which remains under
investigation.
      The Government has filed a motion for summary dismissal arguing that
Barrientos-Ramirez’s arguments are barred by the appellate-waiver provision
in his plea agreement. In the alternative, the Government seeks an extension
of time in which to file a brief on the merits.
      Barrientos-Ramirez does not challenge, or even mention, the appeal
waiver in his brief. He also does not address whether the Government’s
arguments at sentencing constituted a breach of the plea agreement.
Accordingly, Barrientos-Ramirez has abandoned any argument that the appeal
waiver is invalid, unenforceable, or inapplicable. See United States v. Green,
964 F.2d 365, 371 (5th Cir. 1992).          Moreover, the record reflects that
Barrientos-Ramirez’s appeal waiver was knowing and voluntary, that his
challenges to the procedural and substantive reasonableness of the sentence do
not fall within any of the exceptions to the appeal waiver, and that the
Government complied with its obligations in the plea agreement. See United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). Although a valid appeal waiver does not
implicate our jurisdiction, see United States v. Story, 439 F.3d 226, 230 (5th
Cir. 2006), Barrientos-Ramirez’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); 5TH CIR. R. 42.2. The Government’s motion for


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                               No. 12-40439

summary dismissal is GRANTED, and its alternative motion for an extension
of time in which to file a brief on the merits is DENIED as unnecessary.




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