                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                              Charles R. Fulbruge III
                                                                      Clerk
                                No. 04-50639
                            Conference Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

JESUS JAIME GARCIA-HERNANDEZ,
also known as Jesus Garcia,

                                        Defendant-Appellant.

                            --------------------
               Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 1:04-CR-50-3-SS
                            --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

       Jesus Jaime Garcia-Hernandez (Garcia) appeals the sentence

imposed following his guilty-plea conviction for conspiracy to

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

846.       He challenges the district court’s calculation of his

offense level under the United States Sentencing Guidelines.             He

does not address his waiver, pursuant to his plea agreement, of

his right to appeal.



       *
       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this opinion should not be published and is not precedent except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. 04-50639
                                  -2-

     The record demonstrates that Garcia’s appeal waiver was

informed and voluntary.     See United States v. Portillo, 18 F.3d

290, 292-93 (5th Cir. 1994); United States v. Melancon, 972 F.2d

566, 567 (5th Cir. 1992).    The only appeal rights reserved by

Garcia were the right to appeal any upward departure imposed

pursuant to U.S.S.G. § 5K2.0 and the right to raise

constitutional challenges regarding the effectiveness of counsel

or regarding prosecutorial misconduct.      Garcia’s challenges to

the district court’s calculation of his offense level are not

appeal bases excepted from the waiver.      See United States v.

Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).

     Although the Government asserted the appeal waiver in its

brief, defense counsel did not file a reply brief.      He has

therefore failed to address the threshold issue before this

court.   Garcia’s appeal is therefore without arguable merit and

is DISMISSED as frivolous.     See 5TH CIR. R. 42.2; Howard v. King,

707 F.2d 215, 220 (5th Cir. 1983).

     APPEAL DISMISSED AS FRIVOLOUS.
