                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   July 20, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-10127
                           Summary Calendar



UNITED STATES OF AMERICA,
                                      Plaintiff-Appellee,

versus


MARDIO TRIGG, also known as Trigg-C,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 3:03-CR-00078-2
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     This court dismissed Mardio Trigg’s appeal of his sentence

based on an appeal waiver provision in his plea agreement.

United States v. Trigg, No. 04-10127 (5th Cir. July 6, 2004)

(unpublished).     The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125 S.

Ct. 738 (2005).     Trigg v. United States, 125 S. Ct. 995 (2005).




     *
       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this opinion should not be published and is not precedent except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. 04-10127
                                 -2-

This court requested and received supplemental letter briefs

addressing the impact of Booker.

     In his supplemental letter brief, Trigg argues that the

district court committed Booker error.     The Government reurges

application of the appeal waiver.

     A defendant may waive his statutory right to appeal as part

of a valid plea agreement, provided that the waiver is knowing

and voluntary.   United States v. Robinson, 187 F.3d 516, 517 (5th

Cir. 1999).   The defendant must know that he had a right to

appeal and that he was relinquishing that right.     United States

v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).    When the record

shows that the defendant read and understood the plea agreement

and that he raised no question regarding the sentence appeal

waiver provision, he will be held to the bargain that he has

struck.    Id. at 292-93; accord United States v. McKinney, 406

F.3d 744, 746 (5th Cir. 2005).

     The record reflects that Trigg’s appeal waiver was knowing

and voluntary.   He preserved the right to appeal only (1) a

sentence in excess of the maximum sentence; (2) an upward

departure from the guidelines range; and (3) ineffectiveness of

counsel.   “The language in [an] appellate waiver must be afforded

its plain meaning in accord with the intent of the parties at the

time the plea agreement was executed.”     United States v. Cortez,

___ F.3d ___, No. 04-10152, 2005 WL 1404944, at *1 (5th Cir. June

16, 2005) (per curiam).   Therefore, the reservations in Trigg’s

appeal waiver do not preserve the district court’s factual

findings and legal conclusions underlying its determination of
                          No. 04-10127
                               -3-

the appropriate guidelines range.   See id. (sentence in excess of

the statutory maximum); McKinney, 406 F.3d at 746-47 (upward

departure).

     Having reconsidered our decision in accordance with the

Supreme Court’s instructions, we REINSTATE OUR JUDGMENT

dismissing Trigg’s appeal from his sentence.
