                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40578
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE GUADALUPE RAMIREZ-NUNEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-958-ALL
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Jose Guadalupe Ramirez-Nunez appeals the sentence imposed

following his guilty-plea conviction of violating 8 U.S.C.

§ 1326(a) and (b) by being found in the United States, without

permission, following both his conviction of an aggravated felony

and subsequent deportation.   He seeks to challenge the district

court’s denial of his motion for a downward departure.

     The record reflects that Ramirez-Nunez knowingly and

voluntarily waived his “right to appeal any sentence imposed

within the guidelines range.”   Specifically, Ramirez-Nunez waived

     *
       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this opinion should not be published and is not precedent except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. 04-40578
                               -2-

“the right to appeal the sentence imposed or the manner in which

it was determined” unless the sentence was “imposed above the

statutory maximum” or constituted “an upward departure from the

Sentencing Guidelines . . . .”   The exceptions to Ramirez-Nunez’s

waiver-of-appeal provision do not permit an appeal in this case.

     As Ramirez-Nunez’s appeal waiver clearly precludes this

appeal, and as Ramirez-Nunez has not raised any argument that the

waiver-of-appeal provision is invalid or otherwise inapplicable,

we DISMISS the appeal as frivolous.   See 5TH CIR. R. 42.2; Howard

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

     Larry Warner, Ramirez-Nunez’s attorney on appeal, is warned

that pursuing frivolous appeals will invite sanctions.   See

United States v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
