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

                                                FILED
                                                                December 23, 2009
                                No. 09-50229
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JUAN DAVID SEGURA-LOPEZ,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 2:08-CR-496-4


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Juan David Segura-Lopez appeals the sixty-month sentence he received
after pleading guilty to conspiracy to possess with the intent to distribute more
than 100 kilograms of marijuana, in violation of 21 U.S.C. § 846. For the first
time on appeal, he contends that the district court plainly erred in not awarding
him a U.S.S.G. § 5C1.2 safety-valve reduction and in failing to impose a sentence
below the statutory minimum. As the Government contends, the instant appeal



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 09-50229

is barred by the waiver-of-appeal provision in Segura-Lopez’s plea agreement,
which was knowing, voluntary, and enforceable. See United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo, 18 F.3d 290, 292-93
(5th Cir. 1994); Fed. R. Crim. P. 11(b)(1)(N).
      Segura-Lopez’s argument that the Government breached the plea
agreement by failing to request a safety valve reduction fails because the
Government was under no affirmative obligation to request such a reduction.
In addition, he had two criminal history points.      Thus he was statutorily
ineligible to receive the safety valve reduction. U.S.S.G. § 5C1.2(a)(1). Segura-
Lopez’s claim that the Government engaged in prosecutorial misconduct by
withholding unspecified information regarding his eligibility for safety valve
consideration is wholly conclusional and is not cognizable. See Nichols v. Scott,
69 F.3d 1255, 1286 (5th Cir. 1995) (28 U.S.C. § 2254 case).
      AFFIRMED.




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