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

                                                 FILED
                                                                            April 24, 2009
                                     No. 08-50765
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

RICARDO GARCIA ARMENDARIZ, also known as Ricky, also known as Little
Ricky, also known as Trainer, also known as The Mexican

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:05-CR-48-5


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ricardo Garcia Armendariz appeals his guilty plea conviction and sentence
for conspiracy to manufacture, distribute, and possess with intent to distribute
more than 50 grams of cocaine base. Armendariz argues that counsel rendered
ineffective assistance of counsel by failing to adequately explain the implications
of the plea agreement. He also challenges the district court’s decision to deny a
mitigating role adjustment and safety role adjustment. The Government argues


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50765

that the appeal should be dismissed because Armendariz waived his right to
appeal and the waiver is valid and enforceable. The Government also asserts
that Armendariz’s ineffective assistance of counsel claim is without merit.
      This court reviews the validity of an appeal waiver de novo. See United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). Our review of the record
shows that Armendariz’s waiver was knowing and voluntary. See United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      Armendariz’s safety valve and mitigating role arguments do not fall within
the exceptions to the waiver. Thus, Armendariz cannot raise these claims on
appeal. Armendariz also asserts an ineffective assistance of counsel claim,
which does implicate an exception to the appeal waiver. Although this court
generally declines to review claims of ineffective assistance of counsel on direct
appeal, the record is sufficiently developed for the court to address the claim.
See United States v. Gulley, 526 F.3d 808, 821 (5th Cir.), cert. denied, 129 S. Ct.
159 (2008). Because the record reflects that counsel explained the implications
of the plea agreement to Armendariz, Armendariz’s ineffective assistance of
counsel claim is without merit. See Strickland v. Washington, 466 U.S. 668, 687
(1984).
      Armendariz argues, as he did in the district court in a motion filed
pursuant to 18 U.S.C. § 3582(c)(2), that his base offense level should be reduced
by two levels pursuant to Sentencing Guidelines Amendment 706. In general,
Amendment 706 reduced the base offense levels set forth in U.S.S.G. § 2D1.1(c)
applicable to crack cocaine offenses. However, the base offense level for offenses
involving 4.5 kilograms or more of crack cocaine is unchanged. Armendariz was
held accountable for 9 kilograms of crack cocaine and his original base offense
level was 38. Under the new amendments to § 2D1.1(c)(1), Armendariz’s base
offense level remains 38.      Thus, his base offense level is unaffected by
Amendment 706 to § 2D1.1(c) and, concomitantly, the applicable guidelines
range of imprisonment was not lowered as a result of the amendment. Because

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                                No. 08-50765

§ 3582(c)(2) authorizes a sentence reduction only when the sentencing range is
lowered by an amendment to the Guidelines, the district court did not abuse its
discretion in denying Armendariz’s motion for a reduction of sentence.
AFFIRMED




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