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

                                                 FILED
                                                                           March 10, 2009
                                     No. 08-20264
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOSE ISMAEL MUNOZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:95-CR-142-32


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Ismael Munoz appeals the sentence imposed following his guilty plea
conviction for possession with intent to distribute 100 kilograms or more of
marijuana and conspiracy to launder monetary instruments. While Munoz did
not file a timely notice of appeal, the district court granted him the right to file
an out-of-time appeal in a 28 U.S.C. § 2255 proceeding. The district court,
however, did not vacate and reenter the judgment of conviction. Thus, Munoz’s
instant notice of appeal was filed more than three years after the original

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20264

criminal judgment was entered against him, and it is untimely.            See F ED.
R. C RIM. P. 4(b)(1)(A). However, the time limit for filing a criminal appeal is not
jurisdictional and can be waived. United States v. Martinez, 496 F.3d 387, 388-
89 (5th Cir.), cert. denied, 128 S. Ct. 728 (2007). Because the Government does
not oppose Munoz’s out-of-time appeal, it has waived the application of Rule 4(b).
Accordingly, we may address the Munoz’s appeal.
      Munoz argues that the district committed Fanfan error under United
States v. Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a
mandatory application of the Sentencing Guidelines. The Government contends
that Munoz’s appeal is barred by the appeal waiver in his plea agreement.
      In the appeal waiver, Munoz waived his right to appeal his sentence on
any ground.    The record shows that the appeal waiver was knowing and
voluntary and is enforceable. See United States v. Melancon, 972 F.2d 566, 567-
68 (5th Cir. 1992). Contrary to Munoz’s argument, the appeal waiver bars the
consideration of Munoz’s claim of Fanfan error. See United States v. Burns, 433
F.3d 442, 445-51 (5th Cir. 2005).
      The Government has filed an unopposed motion for leave to file its brief
under seal. The motion is granted.
      AFFIRMED; MOTION FOR LEAVE TO FILE APPELLEE’S BRIEF
UNDER SEAL GRANTED.




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