     Case: 12-40956       Document: 00512208116         Page: 1     Date Filed: 04/15/2013




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

                                                                            FILED
                                                                           April 15, 2013
                                     No. 12-40956
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PHILLIP A. LOWE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-133-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Phillip A. Lowe appeals the sentence imposed following his guilty plea to
one count of wire fraud. He was sentenced to 70 months of imprisonment and
three years of supervised release. He contends that the district court erred by
denying him a reduction for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1. The Government responds that Lowe’s claim of error is barred by his
appeal waiver.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40956     Document: 00512208116      Page: 2    Date Filed: 04/15/2013

                                  No. 12-40956

      While recognizing the existence of the appeal waiver and certifying that
the Government intends to enforce the waiver, see United States v. Acquaye, 452
F.3d 380, 382 (5th Cir. 2006), Lowe has not challenged its validity on appeal, and
he has not asserted that he is appealing based on the exceptions to the appeal
waiver. A review of the record indicates that Lowe knowingly and voluntarily
waived his right to appeal his sentence, see United States v. Portillo, 18 F.3d 290,
292 (5th Cir. 1994), and that his challenge to the denial of a reduction for
acceptance of responsibility does not fall within the exceptions to the waiver.
Therefore, the appeal waiver bars the instant appeal.
      Accordingly, the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
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, 224 (5th Cir. 1999).




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