     Case: 12-41156      Document: 00512595387         Page: 1    Date Filed: 04/14/2014




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

                                                                                     FILED
                                    No. 12-41156                                 April 14, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROGELIO MATA-RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-234-2


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Rogelio Mata-Ramirez (Mata) pleaded guilty to conspiracy to possess
with intent to distribute five kilograms or more of cocaine in violation of 21
U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). In his written plea agreement, Mata
waived his right to appeal his conviction or sentence, reserving only his right
to appeal a sentence imposed above the statutory maximum or an upward
departure from the Sentencing Guidelines that was not requested by the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41156    Document: 00512595387        Page: 2   Date Filed: 04/14/2014


                                 No. 12-41156

Government. The district court sentenced Mata to 188 months in prison, which
was at the top of his advisory guidelines range.
      Mata now challenges his sentence on appeal, arguing that the district
court failed to consider the sentencing factors in 18 U.S.C. § 3553(a). He
acknowledges that his argument is barred by the appeal waiver in his plea
agreement. He nevertheless argues that the appeal waiver is unknowing and
involuntary because his sentence had not yet been imposed when he waived
his right to appeal his sentence. He concedes that this argument is foreclosed
by circuit precedent, but he asks this court to overturn this precedent. The
Government has filed a motion for summary dismissal, arguing that Mata’s
appeal is barred by the appeal waiver. The Government alternatively seeks
an extension of time in which to file a merits brief.
      This court reviews the validity of an appeal waiver de novo. United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). The record reflects that
Mata knowingly and voluntarily agreed to the appeal waiver, making the
appeal waiver enforceable. See United States v. Portillo, 18 F.3d 290, 292 (5th
Cir. 1994). Because Mata’s challenge to his sentence does not fall within the
exceptions to the appeal waiver, his appeal is barred by the waiver. See United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). As Mata concedes, this court
has rejected his argument that a defendant cannot knowingly and voluntarily
waive his right to appeal a sentence prior to the sentence being imposed, and
this court has held that “the uncertainty of Appellant’s sentence does not
render his waiver uninformed.” Melancon, 972 F.2d at 567-68. While Mata
asserts that we should reconsider the holding in Melancon, we may not
overrule the decision of another panel absent a superseding en banc or
Supreme Court decision. United States v. Vargas-Ocampo, 2014 U.S. App.
LEXIS 5575 *1 n.1 (5th Cir. Mar. 26, 2014)(en banc).



                                        2
    Case: 12-41156    Document: 00512595387    Page: 3   Date Filed: 04/14/2014


                                No. 12-41156

      Accordingly, the Government’s motion for summary dismissal is
GRANTED, and the appeal is DISMISSED. The Government’s alternative
motion to extend the time to file its brief is DENIED.




                                       3
