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

                                                                    FILED
                                                                 December 10, 2008
                                 No. 08-10034
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

DWAYNE ARTONIO MAYES, also known as Monster

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 1:04-CR-41-3


Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Dwayne Artonio Mayes appeals the 188-month sentence imposed following
his guilty plea conviction for conspiracy to distribute and possess with the intent
to distribute cocaine base. Mayes contends that the district court erred under
Kimbrough v. United States, 128 S. Ct. 558 (2007), in sentencing him because it
calculated his offense level by applying the guidelines provision for cocaine base
rather than powder cocaine.



      *
      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should not be published and is not precedent except under the limited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. 08-10034

      The Government has filed a motion for summary affirmance, arguing that
the appeal is barred by the waiver-of-appeal provision in Mayes’s plea
agreement. Alternatively, the Government seeks an extension of time to file a
merits brief. Our review of the record shows that Mayes’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 (5th Cir. 2005). Therefore, Mayes’s appeal waiver bars review of the
issue he seeks to raise on appeal.
      After counsel filed his brief, Mayes moved to relieve his counsel and for
appointment of substitute counsel. “Counsel may be relieved upon a showing
that there is a conflict of interest or other most pressing circumstances or that
the interests of justice otherwise require relief of counsel.” FIFTH CIRCUIT PLAN
UNDER THE CRIMINAL JUSTICE ACT, § 5(B). Mayes has not made the requisite
showing.
      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. Mayes’s motion to relieve appointed counsel and
to appoint new counsel is DENIED.




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