                                NONPRECEDENTIAL DISPOSITION
                                  To be cited only in accordance with
                                           Fed. R. App. P. 32.1



                      United States Court of Appeals
                                       For the Seventh Circuit
                                       Chicago, Illinois 60604
                                       Submitted April 28, 2008∗
                                        Decided April 28, 2008


                                                  Before

                                  FRANK H. EASTERBROOK, Chief Judge

                                  MICHAEL S. KANNE, Circuit Judge

                                  JOHN DANIEL TINDER, Circuit Judge


No. 06-4094
                                                                  Appeal from the United
UNITED STATES OF AMERICA,                                         States District Court for the
      Plaintiff-Appellee,                                         Southern District of Illinois.

                 v.                                               No. 06 CR 40017
                                                                  J. Phil Gilbert, Judge.
AGUSTIN TENORIO-TAPIA, also known as
MAURO AGUSTIN TENORIO-TAPIA,
     Defendant-Appellant.

                                                   Order

       Agustin Tenorio-Tapia pleaded guilty to reentering the United States without
permission, following his removal, in violation of 8 U.S.C. §1326. He contends on appeal
that his sentence of 41 months’ imprisonment is excessive because the district court
miscalculated his offense level.



∗ After an examination of the briefs and the record, we have concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 06-4094                                                                  Page 2

       As part of a plea agreement, Tenorio-Tapia waived the right to appeal his
sentence unless “the sentence imposed is in excess of the Sentencing Guidelines (as
determined by the Court (or any applicable statutory minimum [sic], whichever is
greater)”. In exchange for this concession the prosecutor asked the district judge to give
Tenorio-Tapia a sentence at the low end of the range, which the judge did. (The range
calculated by the presentence report, which was adopted by the district judge, is 41 to
51 months.)

       Tenorio-Tapia’s brief on appeal ignores his waiver. The United States filed a brief
invoking the waiver and asking us to dismiss the appeal. Tenorio-Tapia did not file a
reply brief, and we cannot see how the appeal can be reconciled with the waiver.
Accordingly, the appeal is dismissed on the basis of Tenorio-Tapia's waiver.
