                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                              March 28, 2006

                                                                        Charles R. Fulbruge III
                                                                                Clerk
                                   No. 05-20157
                                 Summary Calendar


                          UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,
                                      versus

                             DAVE ANTONIO GRANT,

                                                         Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 4:98-CR-44-ALL
                         --------------------

Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Dave Antonio Grant appeals his sentence following his guilty-

plea conviction for possession with intent to distribute marijuana,

a violation of 21 U.S.C. § 841.          The district court sentenced Grant

to 120 months of imprisonment, five years of supervised release,

and a $100 special assessment.

     Grant     contends    that    his   sentence     violates    the       “Rule     of

Speciality”    because     his    sentence     was   based   on   a     larger     drug

quantity than the quantity specified in various documents seeking

     *
            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opinion should not be published and is not precedent except under the limited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.
his extradition from Jamaica.       He also asserts that the district

court erred by enhancing his sentence on the basis of certain

judicial findings of fact at sentencing.

     The Government argues that Grant’s plea agreement contains a

waiver of appeal that bars his appeal.           Grant argues that the

waiver   should     not   be   enforced    because    it    was   unknowing,

involuntary, and unconscionable.          More particularly, he asserts

that he pleaded guilty to possessing with intent to distribute a

larger quantity of marijuana than the quantity determined by

laboratory testing.

     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 Grant knowingly and voluntarily

waived his right to appeal his sentence, except for a sentence in

excess of the statutory maximum or that was the result of an upward

departure from the Sentencing Guidelines.            See United States v.

Cortez, 413 F.3d 502, 503 (5th Cir. 2005);                 United States v.

McKinney, 406 F.3d 744, 746 (5th Cir. 2005); FED. R. CRIM. P.

11(b)(1)(N).      Because Grant’s sentence was not in excess of the

statutory maximum and did not constitute an upward departure from

                                     2
the Guidelines, we DISMISS Grant’s appeal as barred by the waiver

contained in the plea agreement.

                                              APPEAL DISMISSED.




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