                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                           No. 95-10587
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,


                              VERSUS


                    ANTONIO ARENAS-GUTIERREZ,

                                                Defendant-Appellant.




          Appeal from the United States District Court
               For the Northern District of Texas
                        (4:94-CR-97-Y(13))
                         February 7, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

                            Background

     Antonio Arenas-Gutierrez pleaded guilty to maintaining a place

for the purpose of storing and distributing cocaine and marijuana.

Arenas was sentenced to a term of imprisonment of 78 months and is

to be delivered to immigration officials for deportation following

the completion of his sentence.




     *
       Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
     An investigation conducted by the Drug Enforcement Agency

(DEA)     revealed   the   existence       of   a    multi-kilogram     cocaine-

distribution operation in Fort Worth, Texas.                  According to the

presentence report (PSR), Pablo Sigala and Lorenzo Sigala were the

leaders of the conspiracy.        The cocaine was transported from El

Paso to Fort Worth and delivered to the Sigala brothers.                      The

Sigalases    distributed    the   cocaine       to    other   members    of   the

conspiracy, who were responsible for storing and selling the

cocaine.    Arenas, assisted by Carlos Guitierrez-Moreno and Enrique

Moreno-Guitierrez, stored and distributed cocaine from Arenas'

residence.

        The PSR also stated that Ruben Munoz, the Sigalases' cocaine

supplier, sent Sabino Munoz and Officer Rangel, an undercover

agent, to Fort Worth to collect drug proceeds from the Sigalases.

Munoz and Rangel met with the Sigalases and they prepared a list of

co-conspirators who owed drug proceeds and/or cocaine to the

Sigalases.     The group proceeded to several residences to collect

money or retrieve cocaine.        The group went to the residence of

Arenas located at 2032 Brooks Street, and Pablo Sigala delivered

two kilograms of cocaine to an individual known as "Poncho."

Arenas was present during the delivery.              According to the factual

resume of Pablo Sigala, he had delivered cocaine to that residence

on several occasions.      The resume also indicated that Arenas was

responsible for distributing the cocaine received by "Poncho" from

Sigala.




                                       2
     Agents    executed    a   search       warrant   at   the   Brooks   Street

residence and discovered 3,900 grams of marijuana and a semi-

automatic pistol in a dresser drawer in the bedroom occupied by

Arenas.     Enrique Moreno-Guitierrez and Carlos Guitierrez-Moreno

were found sleeping in another bedroom where a semi-automatic

pistol was found.     In a large hole in the floor of the common

hallway, agents located a toolbox containing 82 grams of cocaine.

Agents discovered several scales which are used to weigh drugs in

a tool shed located in the backyard of the residence.                  The three

men were arrested.   The probation officer who prepared Arenas' PSR

stated that, according to Pablo Sigala's factual resume, Enrique

Moreno-Guitierrez admitted that he was in the residence to protect

the cocaine from robbers.

     In the factual resume supporting his plea agreement, Arenas

admitted that he and others had used the residence to store and

distribute cocaine and marijuana. He also acknowledged that he was

present when Pablo Sigala came to the residence and delivered

approximately two kilograms of cocaine to another person.

      The PSR recommended that Arenas be held accountable for the

two kilograms of cocaine delivered to his residence as well as the

82 grams of cocaine and 3,900 grams of marijuana seized from his

residence.    The probation officer converted the cocaine to its

marijuana    equivalency   because      different      types     of   drugs   were

involved in the offense.        Based on that calculation, the total

amount of drugs involved in the offense was 420.3 kilograms of




                                        3
marijuana, which resulted in Arenas receiving a base offense level

of 28.

      The PSR also recommended that the offense level be increased

by two levels because of Arenas' possession of a dangerous weapon.

It   further    recommended    that    Arenas        receive   a   credit     for   the

acceptance of responsibility, which resulted in his receiving a

total offense level of 27.       Based on his criminal history category

of I, the recommended guideline sentencing range was 70 to 87

months.

      In his objections to the PSR, Arenas argued that he was not a

participant in the conspiracy and that he had no connection with

the other co-conspirators, except that he resided with Carlo and

Enrique.       Arenas also objected to the recommendation that the

offense level be increased for possession of a firearm.

      At the sentencing hearing, Arenas acknowledged that he had

stipulated to the facts contained in his factual resume, which

included an      admission    that    he       was   present   when   Pablo    Sigala

delivered two kilograms of cocaine to his residence.                   However, he

argued at the sentencing hearing that he should not be held

responsible for the two kilograms of cocaine.

      The district court overruled Arenas' objections based on the

reasons given by the probation officer in the addendum to the PSR.

Arenas did not provide any additional evidence to rebut the PSR

findings although the district court afforded him the opportunity

to do so.




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                                     Opinion

     The Government argues that Arenas' appeal should be dismissed

because he waived his right to appeal his sentence in his plea

agreement with the Government.

     In response to the Government's argument, Arenas argues in his

reply brief that he is entitled to appeal because the district

court failed to sentence him within the correct guideline range.

Arenas also argues that the appeal waiver was not specifically

explained to him in court and that he did not understand the

consequences    of   his   waiver.      Arenas   further   argues   that   the

district court also required him to sign a "Notice of Right to

Appeal," a document that expressly stated that he had a right to

appeal.

     "[A] defendant may, as part of a valid plea agreement, waive

his statutory right to appeal his sentence."               United States v.

Melancon, 972 F.2d 566, 568 (5th Cir. 1992).                To be valid, a

defendant's waiver of his right to appeal must be informed and

voluntary.     United States v. Portillo, 18 F.3d 290, 292-93 (5th

Cir.), cert. denied, 115 S. Ct. 244 (1994).

          When the record of the Rule 11 hearing clearly
          indicates that a defendant has read and understands
          his plea agreement, and that he raised no question
          regarding    a  waiver-of-appeal   provision,   the
          defendant will be held to the bargain to which he
          agreed,    regardless   of   whether    the   court
          specifically admonished him concerning the waiver
          of appeal.

Id. at 293.

     Arenas' plea agreement states that his sentence would be

determined by the district court under the sentencing guidelines

                                        5
and that no one could predict his sentence until the completion of

the presentence investigation. The agreement further provides that

Arenas would not be permitted to withdraw his guilty plea in the

event that the applicable guideline range as recommended by the

Unites States Probation Officer or as finally determined by the

District Judge was higher than expected.          The plea agreement also

contains the following provision:

            VI. WAIVER OF RIGHT TO APPEAL SENTENCE: The
            Defendant   understands    that   under    the
            provisions of Title 18, United States Code,
            § 3742 that he has the right to appeal from
            the sentence imposed by the District Judge
            presiding   in   this   case   under   certain
            circumstances.      Being  so   advised,   the
            Defendant hereby waives and gives up his right
            to appeal from any sentence imposed by the
            District Judge presiding in the case, except
            that the Defendant expressly reserves his
            right to appeal from the sentence imposed if
            the District Judge presiding in this case
            departs upward from the applicable guideline
            range.

     During the Rule 111 hearing on March 6, 1995, the district

court    again   advised   Arenas    that   his   sentence   could   not   be

determined until after the preparation of the PSR and that the

court was not bound by any stipulation between Arenas' counsel and

the Government. The district court also advised Arenas that "[y]ou

have the right to appeal the sentence that the Court imposes unless

you waive that right."       Arenas indicated that he understood the

court's    admonitions.     Arenas    confirmed    that   the   entire   plea

agreement had been read to him prior to his signing the document.

Arenas agreed that all of the terms of the agreement were contained

     1
         Fed. R. Crim. P. 11.

                                      6
in the document and that he was voluntarily and freely entering

into the plea agreement.       The district court did not specifically

address the waiver of appeal provision.

      The trial judge found that Arenas voluntarily entered into the

plea agreement      which   contains   the   waiver   provision.     At    the

sentencing hearing on June 19, 1995, the district court advised

Arenas at the conclusion of the proceeding that he was entitled to

appeal his sentence.        The district court also required Arenas to

sign a document that contained a written notice of his right to

appeal.

      The effectiveness of the waiver of the right to appeal in the

plea agreement in this case is controlled by our decisions in

Portillo and Melancon cited earlier.          In Portillo, the defendant

made the same contention as Arenas here that the waiver of the

right to appeal was not specifically addressed in the Rule 11

hearing.    However, in Portillo we held that where "the record of

the Rule 11 hearing clearly indicates that a defendant has read and

understands his plea agreement, and that he raised no question

regarding a waiver-of-appeal provision, the defendant will be held

to the bargain to which he agreed, regardless of whether the court

specifically admonished him concerning the waiver of appeal."              18

F.3d at 292-93.      Similarly, in Melancon the defendant contended

that the "knowingness" of his waiver of the right to appeal was

negated by the district court's misstatement at sentencing that he

had   the   right   to   appeal.   Our     Court   squarely   rejected    this

contention:


                                       7
          The court's statements ... were made four months
          after Appellant entered into the plea agreement
          with the Government; they could not have influenced
          Appellant's decision to plead guilty. Furthermore,
          any alleged uncertainty on behalf of the district
          court as to the legality of the agreement does not
          affect our determination that Appellant's waiver
          was voluntary, knowing, and permissible.

972 F.2d at 568.

     Accordingly, we hold that Arenas waived his right to appeal in

this case and that this appeal should, accordingly, be DISMISSED.




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