                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 10, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-51283
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BERNARDINO GARCIA-ALVAREZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-03-CR-1160-ALL-PM
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     We sua sponte withdraw our previous opinion** in this case

and substitute the following.

     Bernardino Garcia-Alvarez appeals his sentence for

possession with intent to distribute 50 kilograms or more of

marijuana, in violation of 21 U.S.C. § 841.   He argues that the

waiver-of-appeal provision in his plea agreement is invalid and


     *
       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this opinion should not be published and is not precedent except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.
     **
       The district court has now supplemented the record with a
full transcript of the rearraignment proceeding, and neither
party has filed a response or has moved for rehearing.
                           No. 03-51283
                                -2-

that the court clearly erred in denying him a two-level reduction

in his offense level pursuant to U.S.S.G. § 3B1.2(b).

     At the guilty-plea hearing, the district court recited the

terms of the plea agreement and explained the waiver-of-appeal

provision.   Garcia indicated that he understood.   Thus, the

waiver was knowingly and voluntarily made.    See United States v.

Melancon, 972 F.2d 566, 569-70 (5th Cir. 1992).

     Even if Garcia had not waived his right to appeal, this

court would reject his claim that the district court misapplied

the guidelines and clearly erred in determining that Garcia was

not entitled to an adjustment based on his role in the offense.

Garcia has not shown by a preponderance of the evidence that

there was another person involved in the offense.    See United

States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995); U.S.S.G.

§ 3B1.2, comment. (n.2).   Nor has he provided any evidence to

rebut the probation officer’s finding that there was no

information to substantiate or corroborate the existence of a

more culpable person in this transaction.    Therefore, it was not

clear error for the court to adopt that finding.    See Brown, 54

F.3d at 241.

     AFFIRMED.
