                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 22, 2004
                       FOR THE FIFTH CIRCUIT
                                                       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:*

     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

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).

     The district court did not explain the waiver-of-appeal

provision to Garcia at the guilty-plea hearing to insure that


     *
       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this opinion should not be published and is not precedent except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. 03-51283
                                     -2-

Garcia understood the consequences of the waiver, nor did the

court ask him whether he had read the plea agreement and

understood it.     See United States v. Robinson, 187 F.3d 516, 517

(5th Cir. 1999).    Therefore, the waiver was not knowingly and

voluntarily made.     See id.

     The district court did not misapply the guidelines nor

clearly err 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.
