                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 05-10291
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,
versus

MARCUS HARRIS,

                                      Defendant-Appellant.

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

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Marcus Harris appeals his sentence following his guilty-plea

conviction for conspiracy to commit bank fraud under 18 U.S.C.

§§ 871 and 1344.    The district court sentenced Harris to 60

months of imprisonment, three years of supervised release,

restitution of $518,412, and a $100 special assessment.         Harris’s

substantive issues on appeal concern the determination of his

offense level and the amount of restitution.

     The Government moves to dismiss the appeal arguing that

Harris’s plea agreement contains a waiver of appeal that bars his


     *
       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this opinion should not be published and is not precedent except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. 05-10291
                                -2-

appeal.   Harris argues that the waiver should not be enforced

because it was unknowing and involuntary and that to enforce the

waiver would be a miscarriage of justice.    We review de novo

whether a waiver provision bars an appeal.     United States v.

Baymon, 312 F.3d 725, 727 (5th Cir. 2002).    We determine whether

the waiver was knowing and voluntary and whether the waiver

applies to the circumstances at issue.     United States v. Bond,

414 F.3d 542, 544 (5th Cir. 2005).

     The record reflects that Harris knowingly and voluntarily

waived his right to a direct appeal of his sentence, except for a

sentence that was in excess of the statutory maximum, that was

the result of an upward departure from the Sentencing Guidelines,

or that was an arithmetic error.     United States v. McKinney, 406

F.3d 744, 746 (5th Cir. 2005); United States v. Burns, 433 F.3d

442, 450-51 (5th Cir. 2005).   Harris does not assert either an

upward departure or an arithmetic error.    Harris argues under

Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005), that his sentence exceeded the

statutory maximum.   We rejected this argument in United States v.

Cortez, 413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct.

502 (2005).

     Because Harris’s issues on appeal do not fall within the

preserved exclusions to the valid waiver of appeal, they are

barred.   The Government’s motion to dismiss the appeal is DENIED

because a valid appeal waiver does not implicate our
                            No. 05-10291
                                 -3-

jurisdiction.    United States v. Story, 439 F.3d 226, 230-31 (5th

Cir. 2006).

     AFFIRMED.
