                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                                               FILED
                 IN THE UNITED STATES COURT OF APPEALS        June 22, 2004
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                              No. 03-50557
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ANGEL BORUNDA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. P-02-CR-100-16-RAJ
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Angel Borunda appeals his sentence imposed following his

guilty plea conviction for conspiracy to possess with intent to

distribute in excess of 1000 kilograms of marijuana.       Borunda was

sentenced to 120 months’ imprisonment, to be followed by a five-

year term of supervised release.

     Prosecutorial misconduct was an exception to the appeal

waiver provision in Borunda’s plea agreement, and Borunda argues

that his waiver was invalid because the prosecutor engaged in


     *
       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this opinion should not be published and is not precedent except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. 03-50557
                                -2-

misconduct in asserting that Borunda was not eligible for

application of U.S.S.G. § 5C1.2, the safety valve provision.

     The evidence presented showed that the agents did not

believe that Borunda had provided them with all the information

or evidence that he possessed, and the district court agreed

with the agents by refusing to apply the safety valve provision.

Borunda has not demonstrated any act of misconduct on the part of

the prosecutor in connection with the district court’s decision

not to apply the safety valve provision.   Thus, Borunda was not

entitled to rely on the prosecutorial misconduct exception to

the waiver provision in his plea agreement.   Borunda has not

otherwise shown that the waiver was unknowingly and involuntarily

entered.   See United States v. Melancon, 972 F.2d 566, 567-68

(5th Cir. 1992).

     Borunda cannot overcome the waiver by arguing that his

sentence was illegal because such argument was not excepted from

the waiver.   The waiver in Borunda’s plea agreement must be

enforced, and the appeal DISMISSED.   We need not address

Borunda’s claim that the district court erred in refusing to

apply the safety valve provision.

     APPEAL DISMISSED.
