                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 13, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20342
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARIO JAIME TREVINO-FLORES, also know as Prieto,


                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-437-3
                      --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Mario Jaime Trevino-Flores (Trevino) appeals the sentence

imposed by the district court following his guilty plea

conviction for aiding and abetting in the possession with the

intent to distribute marijuana.   As his sole argument on appeal,

Trevino argues that the district court improperly considered his

criminal history in determining the amount of his downward

departure under U.S.S.G. § 5K1.1.




     *
       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this opinion should not be published and is not precedent except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. 05-20342
                                 -2-

     The Government moves to dismiss Trevino’s appeal on the

basis of the plea agreement, which contained a waiver-of-appeal

provision providing that Trevino waived his right to appeal

except an “upward departure from the USSG sentencing issues

only.”

     The record reflects that Trevino’s waiver was knowing and

voluntary.    See FED. R. CRIM. R. 11(b)(1)(N); United States v.

Robinson, 187 F.3d 516, 518 (5th Cir. 1999).    Giving the language

in the waiver its ordinary and natural meaning, see United States

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

502 (2005), Trevino reserved only the right to appeal a sentence

that represented an upward departure from the recommended

Sentencing Guidelines range.    Trevino cites to no authority

supporting his assertion that the term “upward departure” could

also be a reference to a sentence greater than that which he

subjectively expected.

     Because Trevino’s issue on appeal does not fall within the

preserved exclusion to the valid waiver of appeal, it is barred.

The Government’s motion to dismiss the appeal is denied as moot

because a valid appeal waiver does not implicate our

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

Cir. 2006).

     AFFIRMED; MOTION DENIED.
