                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 14, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-40228
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFONSO GARCIA-CORONADO, also known as Poncho,

                                    Defendant-Appellant.


                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-377-1
                      --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Alfonso Garcia-Coronado (Garcia) appeals the sentence

imposed by the district court after he pleaded guilty to two

counts of a nine-count superseding indictment charging that he

conspired to transport and harbor aliens for financial gain and

that he was a felon in possession of a firearm.   He first argues

that the district court incorrectly applied the sentencing

guidelines by assessing him a nine-level adjustment based on a

factual finding that he transported more than 100 aliens.

     *
       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this opinion should not be published and is not precedent except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. 03-40228
                                 -2-

     Garcia entered into a plea agreement wherein he waived his

right to appeal a sentence imposed within the guidelines range.

Although neither party addresses the waiver, we will do so

because a waiver of the right to appeal would deprive this court

of jurisdiction.   See United States v. Martinez, 263 F.3d 436,

438 (5th Cir. 2001).

     A defendant may waive his right to appeal as part of a valid

plea agreement if the waiver is knowing and voluntary.        United

States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999).    The

defendant must know that he “had a right to appeal his sentence

and that he was giving up that right.”     United States v.

Portillo, 18 F.3d 290, 292 (5th Cir. 1994)(internal quotations

and citation omitted); see also FED. R. CRIM. P. 11(c)(6)

(the district court has a duty to advise the defendant of the

terms of the waiver-of-appeal provision)(version applicable to

guilty pleas entered prior to Dec. 1, 2002).    An appeal in

contravention of the waiver provision should be dismissed.

United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).

     Garcia’s argument that the district court erred in its fact-

finding regarding the number of aliens smuggled “is plainly

waived by the agreement.”   See Martinez, 263 F.3d at 438.

Moreover, the record demonstrates that the district court

complied with FED. R. CRIM. P. 11(c)(6) by advising Garcia of the

terms of the waiver-of-appeal provision.    Garcia indicated that

he knew the rights he was giving up under the terms of the plea
                             No. 03-40228
                                  -3-

agreement.     Because the waiver was knowing and voluntary, it will

be enforced.     See Melancon, 972 F.2d at 568.

     Garcia’s second argument is that the 120-month sentence he

received on the firearms count amounted to an unjustified upward

departure.    Because Garcia preserved his right to appeal a

sentence not within the guidelines range, this court must

determine whether the sentence was within the guidelines range or

whether it amounted to an upward departure from that range.

     When multiple counts are contained in the same indictment,

“the sentence imposed on each count shall be the total punishment

as determined in accordance with Part D of Chapter Three, and

Part C of [Chapter Five].”    U.S.S.G. § 5G1.2(b) & comment. (n.1).

The “total punishment” is determined by combining the offense

levels for the offenses, “taking the offense level applicable to

the Group with the highest offense level and increasing that

offense level” in accordance with the table in § 3D1.4.    U.S.S.G.

§§ 3D1.4, 3D1.5.    “If the sentence imposed on the count carrying

the highest statutory maximum is adequate to achieve the total

punishment, then the sentences on all counts shall run

concurrently . . . .”    U.S.S.G. § 5G1.2(c).

     The 120-month term of imprisonment on the firearms count was

not the result of an upward departure, but rather the result of

the district court’s correct application of the sentencing

guidelines.    Accordingly, Garcia’s challenge to the sentence is

waived under the terms of the plea agreement.     Garcia’s argument
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                                -4-

that Blakely v. Washington, 124 S. Ct. 2531 (2004), provides

additional grounds for reversal of his sentence is foreclosed in

this court.   See United States v. Pineiro, No. 03-30437, 2004 WL

154170, *1 (5th Cir. July 12, 2004).   The appeal is DISMISSED.

See Martinez, 263 F.3d at 439.

     APPEAL DISMISSED.
