                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 16, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40186
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN PABLO ROBLES-HERNANDEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-613-ALL
                      --------------------

                     ON PETITION FOR REHEARING

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     IT IS ORDERED that the petition for rehearing filed by

appellant is GRANTED.   The panel opinion, dated February 14,

2007, is withdrawn, and the following opinion is substituted:

     Juan Pablo Robles-Hernandez pleaded guilty to being found in

the United States without having obtained permission to re-enter

and after having been removed subsequent to a conviction for an

aggravated felony.   In his plea agreement, Robles-Hernandez

waived his right to appeal his conviction and sentence except for

     *
       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this opinion should not be published and is not precedent except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. 05-40186
                                -2-

a sentence above the statutory maximum or an upward departure

from the Sentencing Guidelines.

      Robles-Hernandez argues that the waiver of his right to

appeal his sentence is unenforceable because he entered his

guilty plea prior to the decision in United States v. Booker,

543 U.S. 220 (2005), and may have waived rights of which he was

unaware.   Robles-Hernandez concedes that this argument is

foreclosed by United States v. Burns, 433 F.3d 442, 450-51 (5th

Cir. 2005), but he raises it here to preserve it for further

review.

     Notwithstanding his concession that his waiver of appeal is

enforceable, Robles-Hernandez seeks to appeal his sentence.

Robles-Hernandez does not suggest that either of the conditions

supporting the specific exceptions to the waiver exist.

Accordingly, Robles-Hernandez may not appeal his sentence.    The

judgment of the district court is AFFIRMED.    See United States v.

Story, 439 F.3d 226, 230-31 (5th Cir. 2006).

     Robles-Hernandez’s pro se motion for the appointment of

counsel is DENIED.
