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

                                                                    FILED
                                                                  October 21, 2008
                                 No. 08-10046
                              Conference Calendar              Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

DON WHITLEY LIVELY, also known as Don Whitley Liveley

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 1:07-CR-41-ALL


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
      Don Whitley Lively appeals the 71-month sentence imposed following his
guilty plea conviction for possession of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g)(1). He contends that the district court erred when it
enhanced his sentence pursuant to U.S.S.G. §§ 2K2.1(b)(6) and 3C1.2 because
both enhancements were based on the same conduct.
      The Government has filed a motion for summary affirmance arguing that
the appeal is barred by the appellate-waiver provision in Lively’s plea

      *
      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should not be published and is not precedent except under the limited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. 08-10046

agreement. Alternatively, the Government requests an extension of time in
which to file a brief on the merits. Lively has filed a response arguing that
because his appeal is based on the district court’s alleged violation of his
substantive and procedural due process rights, his appeal is not barred by the
appellate-waiver provision.
      Our review of the record shows that Lively’s appeal waiver was knowing
and voluntary and that, under the plain language of the plea agreement, the
waiver applies to the circumstances at hand. See United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005); United States v. McKinney, 406 F.3d 744, 746-47
(5th Cir. 2005). Therefore, Lively’s appeal waiver bars review of the issue he
seeks to raise on appeal.
      Accordingly,   the    district   court’s   judgment   is   AFFIRMED,   the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.




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