                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 5, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41300
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE IBARRA,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-234-3
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Ibarra appeals the sentence imposed following his

guilty-plea conviction for possession with intent to distribute

more than 500 grams of cocaine.   Ibarra argues generally that his

sentence violates the Sixth Amendment rule announced in United

States v. Booker, 125 S. Ct. 738 (2005), and also challenges the

imposition of an enhancement based on his role as a leader or

organizer pursuant to U.S.S.G. § 3B1.1, apparently both under

Booker and on grounds of factual sufficiency.



     *
       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this opinion should not be published and is not precedent except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. 04-41300
                                  -2-

     As the Government correctly argues, Ibarra signed a written

plea agreement in which he expressly waived his right to appeal

his sentence, reserving the right to appeal only a sentence

imposed above the statutory maximum or an upward departure from

the Sentencing Guidelines.    Although Ibarra failed to address the

validity and scope of the waiver, we exercise our discretion to

examine the waiver sua sponte.    See United States v. Martinez,

263 F.3d 436, 438 (5th Cir. 2001).    The transcript of the guilty

plea hearing demonstrates that Ibarra’s appeal waiver was both

knowing and voluntary and is, therefore, enforceable.     See United

States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002).

     Further, the waiver plainly bars Ibarra’s appeal.    Neither

Ibarra’s Booker challenge nor his challenge to the sufficiency of

the evidence supporting the § 3B1.1 enhancement falls within the

scope of the two exceptions to the waiver.    See United States v.

Bond,     F.3d    , No. 04-41125, 2005 WL 1459641, at *3 (5th

Cir. June 21, 2005) (sentence imposed in violation of Booker rule

does not constitute sentence in excess of statutory maximum);

United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005)

(sentence imposed in violation of Booker rule does not constitute

upward departure); United States v. Gaitan, 171 F.3d 222, 223-24

(5th Cir. 1999) (a § 3B1.1 enhancement is not an upward

departure).

     As Ibarra’s appeal waiver clearly precludes this appeal, and

as Ibarra failed to raise any meritorious argument that the
                            No. 04-41300
                                 -3-

waiver was 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).

     In light of the foregoing, we hereby ORDER Ibarra’s counsel,

Philip T. Cowen, to show cause why this court should not impose

sanctions or otherwise discipline him for pursuing the appeal in

light of his client’s clear and unambiguous appeal waiver and for

failing to address the waiver in either the initial or reply

brief.   See Gaitan, 171 F.3d at 223; FED. R. APP. P. 46(c).   Cowen

shall have 30 days from the date of this opinion to file a

response.

     APPEAL DISMISSED AS FRIVOLOUS; COUNSEL ORDERED TO SHOW CAUSE

WITHIN 30 DAYS WHY SANCTIONS SHOULD NOT BE IMPOSED.
