                                                       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. 04-40707
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE MANUEL ESCAMILLA,
                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:93-CR-151-4
                      --------------------

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

PER CURIAM:*

     Jose Manuel Escamilla appeals following his conviction and

sentence for possession with intent to distribute more than 100

kilograms of marijuana.    He contends that the district court

erred by adjusting his offense level due to his brother’s

possession of a weapon and due to obstruction of justice.         He

argues that the waiver provision in his plea agreement does not

preclude an appeal from his sentence, in light of the issuance of

United States v. Booker, 543 U.S. 220 (2005), subsequent to the



     *
       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this opinion should not be published and is not precedent except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. 04-40707
                                 -2-

entry of his plea.   The Government seeks enforcement of the waiver.

     “[A]n otherwise valid appeal waiver is not rendered invalid,

or inapplicable to an appeal seeking to raise a Booker or Fanfan

issue . . . merely because the waiver was made before Booker.”

United States v. Burns, 433 F.3d 442, 450-51 (5th Cir. 2005).

Moreover, Booker did not transform the district court’s upward

adjustments into upward departures that are appealable under the

waiver provision.    See United States v. McKinney, 406 F.3d 744,

746-47 (5th Cir. 2005).    Additionally, judicial creation of an

exception in every waiver provision for “material and unlawful

misapplication of the Sentencing Guidelines” would effectively

preclude waivers of any and all guideline misapplications.     We

routinely have enforced such waivers.      See, e.g., Burns, 433 F.3d

at 443-44.   Finally, appointment of appellate counsel did not

constitute an implied finding that the waiver provision was

inapplicable.

     Escamilla has not shown that his plea waiver was involuntary

or that it should not be enforced.    Escamilla’s arguments

regarding the guideline sentencing adjustments thus are precluded

by the waiver provision.

     AFFIRMED.
