     Case: 09-40973     Document: 00511160681          Page: 1    Date Filed: 07/01/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             July 1, 2010
                                     No. 09-40973
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BALDOMERO FARIAS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:08-CR-403-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Baldomero Farias pleaded guilty to possession with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and was
sentenced, inter alia, to 121 months’ imprisonment and a $25,000 fine. In his
plea agreement, Farias waived the right to appeal his conviction and sentence,
including appeal rights conferred by 18 U.S.C. § 3742. Farias also waived the
right to contest his conviction and sentence in any collateral proceedings under
28 U.S.C. § 2255 or by means of any post-conviction proceeding. He reserved 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40973       Document: 00511160681 Page: 2      Date Filed: 07/01/2010
                                    No. 09-40973

right to appeal a sentence imposed above the statutory maximum or an upward
departure from the Sentencing Guidelines which had not been requested by the
United States.
          Without addressing the appeal waiver, Farias contends that, because the
Government agreed to recommend the lowest end of the Guidelines sentencing
range, the Government was barred from seeking a fine of $50,000.               The
Government responds: in his plea agreement Farias waived his right to appeal,
inter alia, his sentence; the listed exceptions to the waiver do not apply; and it
did not breach the plea agreement by recommending a fine. See United States
v. Keresztury, 293 F.3d 750, 755-57 (5th Cir. 2002) (holding that, if the
Government has breached a plea agreement, defendant is necessarily released
from an appeal waiver provision contained therein). (Farias did not file a reply
brief.)
          The terms of the waiver in the plea agreement were read aloud at the plea
hearing, the district court specifically questioned Farias about the waiver-of-
appeal provision, and Farias stated that he understood it. The record reflects
that Farias’s waiver was both knowing and voluntary. See United States v.
McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005).
          The Government complied with its obligations under the plea agreement
by recommending a sentence of imprisonment at the lowest end of the
Guidelines range, recommending three points for acceptance of responsibility,
and moving to dismiss the remaining counts of the superseding indictment.
          The exceptions to the waiver-of-appeal provision do not apply. Therefore,
Farias is bound by that provision and may not appeal his sentence.              See
McKinney, 406 F.3d at 746-47.
          DISMISSED.




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