                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 00-10179
                          Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

MAX HASTINGS,

                                          Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 4:99-CR-164-3-D
                       --------------------
                           June 7, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

     Max Hastings requests leave to proceed in forma pauperis

(IFP) in the appeal of the 79-month sentence imposed by the

district court following his guilty plea to a charge of

distribution of 15 grams of methamphetamine.   Hastings contends

that the district court did not ascertain whether he understood

the right to appeal his sentence and the consequences of his

waiver of that right.   Hastings asserts that he did not know that

his sentence might be enhanced based on a codefendant’s

possession of firearms, and he challenges a two-level enhancement


     *
        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that this opinion should not be published and is not precedent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. 00-10179
                                 -2-

applied to his base offense level pursuant to U.S.S.G.

§ 2D1.1(b)(1).

     The Government moves to dismiss Hastings’ appeal asserting

that Hastings knowingly and voluntarily waived the right to

appeal his sentence and that Hastings’ challenge to the U.S.S.G.

§ 2D1.1(b)(1) increase is barred by the waiver.

     We will uphold a waiver of the statutory right to appeal as

part of a valid plea agreement if the waiver is knowing and

voluntary.    See United States v. Robinson, 187 F.3d 516, 517 (5th

Cir. 1999); United States v. Melancon, 972 F.2d 566, 567 (5th

Cir. 1992).

     Hastings waived the right to appeal any sentence that was

imposed under the Sentencing Guidelines if the sentence was

within or below the Guideline range as determined by the district

court.   Hastings agreed that the district court, in its

discretion, would determine the Sentencing Guideline range that

was applicable in his case.

     The district court ascertained at the Fed. R. Crim. P. 11

hearing that Hastings understood that in paragraph five of the

plea agreement, he had waived the right to appeal his sentence

except in very limited circumstances.      Hastings waived the

reading of the plea agreement at rearraignment and affirmed that

he understood and agreed to the plea agreement’s terms.

     The district court determined that Hastings’ Sentencing

Guideline range was 70 to 87 months’ imprisonment and sentenced

Hastings within that Guideline range.      Hastings executed a
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                                -3-

knowing and voluntary waiver of the right to appeal his sentence.

See Robinson, 187 F.3d at 517.

     Hastings’ appeal is without arguable merit and is thus

frivolous.   Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is dismissed.   5th Cir.

R. 42.2.   Hastings’ motion for leave to appeal IFP is denied.

See Howard, 707 F.2d at 219-20.   The Government’s motion to

dismiss the appeal is granted.

     APPEAL DISMISSED AS FRIVOLOUS; IFP MOTION DENIED; MOTION TO

DISMISS GRANTED.
