     Case: 13-40963      Document: 00512846750         Page: 1    Date Filed: 11/24/2014




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

                                    No. 13-40963
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      November 24, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

NOE LIRA-MIRANDA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:13-CR-235


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Noe Lira-Miranda appeals the sentence imposed following his guilty plea
conviction to conspiracy to transport illegal aliens. The guilty plea was made
pursuant to a plea agreement wherein Lira-Miranda waived the right to appeal
his sentence, reserving only the right to appeal a sentence above the statutory
maximum or an upward departure not requested by the Government. Lira-
Miranda was sentenced within the guidelines range to the statutory maximum


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40963    Document: 00512846750    Page: 2   Date Filed: 11/24/2014


                                No. 13-40963

of 120 months of imprisonment, to be followed by three years of supervised
release. On appeal, Lira-Miranda challenges the enhancements applied to his
sentence under U.S.S.G. §§ 2L1.1(b)(2)(B), 2L1.1(b)(5)(B), 2L1.1(b)(8)(A), and
3C1.1. His challenges to the application of sentence enhancements do not fall
within an exception to the appeal waiver because the sentence is not an upward
departure. See United States v. Gaitan, 171 F.3d 222, 222-24 (5th Cir. 1999).
      The Government invokes the appeal waiver and seeks a dismissal of the
appeal.   A review of the record indicates that the appeal waiver was
unambiguous, that Lira-Miranda knowingly and voluntarily waived his right
to appeal his sentence, and that his claims of error regarding his sentence are
barred by the appeal waiver. See United States v. Keele, 755 F.3d 752, 754 (5th
Cir. 2014), cert. filed, No. 14-256 (Aug. 29, 2014). Additionally, the district
court’s statements at sentencing did not negate the appeal waiver. See United
States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). Furthermore, a district
court does not have the authority to accept a plea agreement while striking the
appeal waiver provision. See United States v. Serrano-Lara, 698 F.3d 841, 844-
45 (5th Cir. 2012).
      Accordingly, the appeal is DISMISSED.




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