     Case: 09-50808     Document: 00511136548          Page: 1    Date Filed: 06/09/2010




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

                                                  FILED
                                                                            June 9, 2010
                                     No. 09-50808
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER FLORES-VALDEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-111-1


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Javier Flores-Valdez (Flores) appeals his sentence of 36 months of
imprisonment and three years of supervised release for illegal reentry in
violation of 8 U.S.C. § 1326(a) and (b)(1).              However, in his written plea
agreement, Flores waived his right to appeal his sentence on any ground, except
for ineffective assistance of counsel or prosecutorial misconduct.
        Flores does not assert that his appeal waiver is invalid or unenforceable.
The record of the rearraignment hearing indicates that Flores read and

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50808       Document: 00511136548 Page: 2             Date Filed: 06/09/2010
                                    No. 09-50808

understood his plea agreement and that he raised no question regarding the
appeal waiver. Therefore, his waiver was knowing and voluntary. See United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Flores’s challenges to his
sentence do not fall within the exceptions to the appeal waiver. See id. at 746-
47. Therefore, the appeal waiver bars the instant appeal.1
       Flores’s conviction is AFFIRMED. However, this case is REMANDED
pursuant to F ED. R. C RIM. P. 36 for the limited purpose of correcting a clerical
error in the judgment to reflect that Flores was convicted and sentenced under
§ 1326(a) and (b)(1) rather than § 1326(a).




       1
         Robert R. Sykes, counsel for Flores, did not address the appeal waiver or respond to
the Government’s argument regarding the appeal waiver. We caution counsel that pursuing
a basis for appeal that is waived by a valid appeal waiver and failing to address the waiver in
a reply brief after it is raised by the Government may result in sanctions. See United States
v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).

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