               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-51075
                        Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

EULALIO DIAZ NIETO,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-99-CR-100-1-SS
                       --------------------
                         October 25, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Eulalio Diaz Nieto appeals his sentence for possession with

intent to distribute cocaine.   Nieto knowingly and voluntarily

waived his right to appeal his sentence.      See United States v.

Melancon, 972 F.2d 566, 567 (5th Cir. 1992); United States v.

Portillo, 18 F.3d 290, 292 (5th Cir. 1994).      Because Nieto’s

sentence did not represent an upward departure from the

applicable Sentencing Guidelines range, Nieto’s appeal is

foreclosed by the waiver.   This appeal is DISMISSED.



     *
        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that this opinion should not be published and is not precedent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.
