     Case: 14-50028      Document: 00513007815         Page: 1    Date Filed: 04/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50028
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 16, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ANGEL RENE HERNANDEZ, also known as Angel Hernandez, also known as
Angel Renee Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CR-538-1


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Pursuant to a plea agreement, Angel Rene Hernandez pleaded guilty to
conspiracy to possess with intent to distribute methamphetamine and was
sentenced to 144 months in prison. He contends for the first time on appeal
that the district court erred in assigning criminal history points to two of his
prior convictions. The Government urges us to enforce the appellate waiver in



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50028    Document: 00513007815     Page: 2   Date Filed: 04/16/2015


                                 No. 14-50028

the plea agreement. Hernandez does not address the appeal waiver in his
opening brief, and he has not filed a reply brief to respond to the Government’s
argument. We review the validity of the appeal waiver de novo. See United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).
      Hernandez waived his right to appeal his sentence unless it was the
result of an upward departure, ineffective assistance of counsel, or
prosecutorial misconduct. The waiver was knowing and voluntary, as the
record shows that Hernandez knew of his right to appeal and that he was
giving up that right in the plea agreement. See United States v. Portillo,
18 F.3d 290, 292 (5th Cir. 1994). Because the plain language of the waiver
provision applies to Hernandez’s challenge to his criminal history category, we
enforce the waiver. See United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005). Counsel for Hernandez is cautioned that pursuing an appeal contrary
to a valid waiver is a needless waste of judicial resources that could result in
sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).
      AFFIRMED.




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