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

                                                FILED
                                                                October 21, 2009
                                No. 08-50611
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

HERBEY GARCIA ARMENDARIZ, also known as Herman Garcia,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 7:07-CR-180-ALL


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
      Herbey Garcia Armendariz pleaded guilty to possession of cocaine base,
in violation of 21 U.S.C. § 844. The district court sentenced Armendariz to 60
months of imprisonment and three years of supervised release. On appeal,
Armendariz argues that his sentence is unreasonable and that the statutory
minimum sentence set forth in 21 U.S.C. § 844(a) is unconstitutional, both on its
face and as applied to him.



      *
      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should not be published and is not precedent except under the limited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. 08-50611

      The Government has filed a motion to dismiss Armendariz’s appeal on the
ground that the appeal is barred by the appeal-waiver provision in Armendariz’s
written plea agreement. Pursuant to the plea agreement, Armendariz waived
his right to appeal his conviction and sentence except for claims of ineffective
assistance of counsel or specified types of prosecutorial misconduct. Armendariz
argues that the waiver provision should not be enforced because (1) the district
court failed to comply with F ED. R. C RIM. P. 11(b)(1)(N) and (2) the district court
subsequently determined that the waiver provision should not be followed.
      This court reviews de novo whether a waiver of appeal bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). To determine the
validity of an appeal waiver, this court conducts a two-step inquiry, asking
(1) whether the waiver was knowing and voluntary and (2) whether, under the
plain language of the plea agreement, the waiver applies to the circumstances
at issue. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). In the instant
case, Armendariz signed the plea agreement.           At his guilty plea hearing,
Armendariz confirmed that he read, signed, and understood the plea agreement.
The district court specifically informed Armendariz that, other than the specific
issues that could not be waived, “waivers for the rest of your rights to appeal are
enforceable against you and will, as provided, prohibit an appeal by you.”
Armendariz affirmed his understanding of that waiver.                  Accordingly,
Armendariz’s waiver was knowing and voluntary. See Bond, 414 F.3d at 544.
Moreover, examination of the record does not support Armendariz’s argument
that the district court determined that the waiver provision should not be
followed.
      As the arguments Armendariz seeks to raise on appeal do not fall within
the specified exceptions to his appeal-waiver provision, the district court’s
judgment is AFFIRMED. The Government’s motion to dismiss the appeal is
DENIED.



                                         2
