     Case: 14-10077      Document: 00513133984         Page: 1    Date Filed: 07/29/2015




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

                                                                                  FILED
                                                                                July 29, 2015
                                    No. 14-10077
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO ARMENDARIZ SANDOVAL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:13-CR-7-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Roberto Armendariz Sandoval (Armendariz) appeals the 45-month term
of imprisonment imposed following his guilty plea conviction for being found
unlawfully present in the United States following deportation. He argues that
the waiver-of-appeal provision in his sentencing agreement with the
Government is not enforceable because the Government refused to move for a
third-level reduction for acceptance of responsibility unless Armendariz


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10077    Document: 00513133984    Page: 2   Date Filed: 07/29/2015


                                No. 14-10077

waived his right to appeal. The Government seeks to enforce the waiver
provision. We pretermit a determination of the enforceability of the waiver
provision. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
      For the first time on appeal, Armendariz contends that the district court
committed reversible plain error by imposing the 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior Oklahoma felony conviction for
possession with intent to distribute marijuana. He asserts that the statute
encompasses an offense involving sharing or delivering the drugs with or
without remuneration, which does not constitute a “drug trafficking offense”
within the meaning of the Guideline.
      As Armendariz concedes, this argument is foreclosed by our recent
holding in United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.
2015). However, he wishes to preserve the argument for further possible
review. Accordingly, Almendariz has shown no clear or obvious error with
regard to his sentence. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      AFFIRMED.




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