                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS               May 27, 2004
                       FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                             No. 03-50879
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

          versus


     HUGO ADRIAN MARTINEZ-RODRIGUEZ,

                                             Defendant-Appellant.




           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. DR-03-CR-70-1 WWJ



Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Hugo Adrian Martinez-Rodriguez (“Martinez”) appeals from his

thirty-seven   month   sentence   for   possession   of   more   than    100

kilograms of marihuana with intent to distribute and aiding and

abetting in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18

U.S.C. § 2.    Martinez’s sole contention on appeal is that 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opinion should not be published and is not precedent except under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.
district     court   erred     in   denying    his    motion     for   a   downward

departure.

      This court reviews de novo whether a waiver of appeal bars an

appeal.      United States v. Baymon, 312 F.3d 725, 727 (5th Cir.

2002).       As   Martinez’s    sentence     did   not    exceed   the     statutory

maximum, and he is not arguing that the Government committed

prosecutorial misconduct or that he received ineffective assistance

of counsel, or that the Government in any way breached the plea

agreement, none of the exceptions to the waiver of appeal applies

in this case.        Martinez, in his plea agreement, knowingly and

voluntarily waived his right to appeal his sentence and he does not

contend otherwise.        See United States v. Portillo, 18 F.3d 290,

292-93 (5th Cir. 1994); see also United States v. Dees, 125 F.3d

261, 269 (5th Cir. 1997).           Prior to sentencing the district court

accepted the guilty plea, made pursuant to the plea agreement, as

reflected in the magistrate judge’s report and recommendation which

the district court accepted.          At the conclusion of sentencing the

government, as it agreed to in the plea agreement, moved to dismiss

the other count of the indictment, and the court granted the motion

and dismissed that count (a conspiracy count).                   As the plea and

plea agreement had already been accepted by the district court, the

court’s remarks at sentencing that the court rejected the part of

the   plea    agreement   waiving      the    right      of   appeal   and,   after

sentencing the defendant, that it was rejecting the entire plea


                                         2
agreement, all without any statement of reasons,1 did not affect

Martinez’s otherwise valid waiver.   See McClure v. Ashcroft, 335

F.3d 404, 413 (5th Cir. 2003) (citing United States v. Ritsema, 89

F.3d 392, 398-99 (7th Cir. 1996)); United States v. Gonzalez, 259

F.3d 355, 358 (5th Cir. 2001); United States v. Melancon, 972 F.2d

566, 568 (5th Cir. 1992).     The government argues that the plea

agreement’s waiver of appeal provision should be enforced by this

court.    Martinez does not respond or address that matter at all.

Martinez’s waiver of appeal is enforceable and bars the present

appeal.

                         APPEAL DISMISSED.




     1
      The district court did state, without explanation, “this is
the kind of case where the Fifth Circuit needs to instruct the
courts of this circuit again.”

                                 3
