     Case: 16-60362      Document: 00514193276         Page: 1    Date Filed: 10/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fif h Circuit
                                    No. 16-60362                                  FILED
                                  Summary Calendar                          October 12, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OSCAR MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:16-CR-12-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Oscar Martinez pled guilty pursuant to a written plea agreement to
conspiracy to distribute methamphetamine, and the district court sentenced
him to 240 months of imprisonment. He contends that the district court erred
when it increased his offense level by two levels pursuant to U.S.S.G.
§ 2D1.1(b)(1) and an additional two levels pursuant to § 2D1.1(b)(5).                          He
further argues that the district court failed to properly weigh the 18 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-60362     Document: 00514193276     Page: 2   Date Filed: 10/12/2017


                                  No. 16-60362

§ 3553(a) sentencing factors. The Government responds by moving to dismiss
the appeal or, alternatively, for summary affirmance based upon the appeal
waiver in Martinez’s plea agreement.
      This court reviews the validity of an appeal waiver de novo. See United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). We rely solely on the
record before us. Cf. United States v. Corbett, 742 F.2d 173, 177 (5th Cir. 1984).
The record establishes that Martinez knowingly and voluntarily agreed to the
appeal waiver, and the record rebuts his claims that the Government breached
the agreement. Thus, the appeal waiver is enforceable. See United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Further, Martinez’s challenge to his
sentence does not fall within the only exception stated in the appeal waiver,
which concerns ineffective assistance of counsel. See United States v. Bond,
414 F.3d 542, 544 (5th Cir. 2005).
      The Government’s motion to dismiss the appeal is GRANTED.                Its
alternative request for summary affirmance is DENIED as moot.
      APPEAL DISMISSED.




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