     Case: 09-50779     Document: 00511166829          Page: 1    Date Filed: 07/08/2010




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

                                                 FILED
                                                                             July 8, 2010
                                     No. 09-50779
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDGAR FERNANDO RUBIO, also known as Omar G. Rubio,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:09-CR-375-3


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Edgar Fernando Rubio appeals the 95-month sentence imposed following
his guilty-plea conviction for conspiracy to possess with intent to distribute 1000
kilograms or more of marijuana. On appeal, Rubio asserts that the district court
erred by failing to grant him a two-level sentencing reduction based upon his
minor role in the offense. However, as the Government contends, the instant
appeal is barred by the waiver-of-appeal provision in Rubio’s plea agreement,
which was knowing, voluntary, and enforceable. See United States v. Robinson,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50779    Document: 00511166829 Page: 2         Date Filed: 07/08/2010
                                 No. 09-50779

187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo, 18 F.3d 290, 292-93
(5th Cir. 1994); F ED. R. C RIM. P. 11(b)(1)(N).
      In his opening brief, Rubio contends that the Government waived
enforcement of the waiver provision by failing to invoke it at the time he filed his
notice of appeal. He is incorrect. See United States v. Acquaye, 452 F.3d 380,
382 (5th Cir. 2006). Rubio preserves for possible Supreme Court review his
contention that waivers of the right to appeal a sentence are not knowing and
voluntary because they are entered before the defendant knows the rights he is
sacrificing. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992) (a
waiver provision is entered knowingly and voluntarily so long as the defendant
knew he had a right to appeal his sentence and gave up that right voluntarily).
      The judgment of the district court is AFFIRMED.




                                          2
