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

                                                 FILED
                                                                            March 4, 2009
                                     No. 08-50071
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

LUIS MANUEL AGUILAR

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 7:07-CR-150-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Luis Manuel Aguilar pleaded guilty to one charge of being a convicted
felon in possession of a firearm, and the district court sentenced him to serve 120
months in prison. Aguilar appeals his sentence. He argues that the prosecutor
committed misconduct by making certain remarks at sentencing. He also argues
that he is entitled to resentencing because the district court made no findings in
support of its conclusion that a four-level sentencing adjustment should be



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50071

applied and because no evidence pertaining to this adjustment was offered at the
hearing.
      The Government argues that the appeal should be dismissed because
Aguilar waived his right to appeal and because the waiver is valid and
enforceable.   The Government also asserts that Aguilar’s prosecutorial
misconduct claim is without merit.
      This court reviews the validity of an appeal waiver de novo. See United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). Our review of the record
shows that Aguilar’s waiver of his appellate rights was knowing and voluntary.
See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Aguilar’s claims
concerning the disputed sentencing adjustment fall within the scope of the
waiver. We thus decline to consider these claims. See id.
      The appellate waiver clause found in Aguilar’s plea agreement contains an
explicit exception for claims concerning prosecutorial misconduct. Consequently,
consideration of his claim concerning the prosecutor’s alleged improper
statements at sentencing is not barred by the waiver. Nevertheless, Aguilar’s
prosecutorial misconduct claim lacks merit. Our review of the record shows that
the disputed statements were not improper and caused no prejudice to Aguilar.
See United States v. Lankford, 196 F.3d 563, 574 (5th Cir. 1999). The judgment
of the district court is AFFIRMED.




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