     Case: 09-50900     Document: 00511175802          Page: 1    Date Filed: 07/16/2010




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

                                                 FILED
                                                                            July 16, 2010
                                     No. 09-50900
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTONIO RIOS-ESCONTRIAS,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 4:09-CR-156-1


Before GARWOOD, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
        Antonio Rios-Escontrias appeals his 46-month sentence imposed following
his guilty plea to aiding and abetting in the possession with intent to distribute
50 kilograms or more, but less than 100 kilograms of marijuana.                         Rios-
Escontrias argues that the district court abused its discretion in imposing a
sentence at the top of the guidelines range based on uncorroborated information
concerning relevant conduct. According to Rios, his sentence was greater than



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50900   Document: 00511175802 Page: 2        Date Filed: 07/16/2010
                                No. 09-50900

necessary to meet the purposes of 18 U.S.C. § 3553(a) and was thus unreasonable.
      The Government argues that Rios-Escontrias knowingly and voluntarily
agreed to waive his right to appeal his sentence in the plea agreement and, thus,
the appeal should be dismissed.
      A review of the record indicates that Rios’s waiver was both knowing and
voluntary because he indicated that he had reviewed and understood the waiver
provision. See United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005).
While recognizing the existence of the waiver provision, Rios has not challenged
its validity on appeal, and he has not asserted that he is appealing based on the
exceptions to the appeal waiver.    Thus, he has waived any argument with
respect to the application of the waiver. See United States v. Thames, 214 F.3d
608, 611 n.3 (5th Cir. 2000).
      Because the waiver is valid, the appeal is dismissed as frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir, 1983); 5th Cir. R. 42.2. Further,
counsel is warned that the filing of an appeal contrary to an appeal waiver is a
needless waste of resources and could result in sanctions. See United States v.
Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).
      APPEAL DISMISSED.




                                       2
