     Case: 11-41413       Document: 00512282090         Page: 1     Date Filed: 06/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 20, 2013
                                     No. 11-41413
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANGEL MARIO GONZALEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-164-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Angel Mario Gonzalez pleaded guilty, pursuant to a written plea
agreement, to one count of conspiring to possess with intent to distribute more
than five kilograms of cocaine and one count of transaction money laundering.
Within the plea agreement, Gonzalez waived his right to appeal or to file a
postconviction challenge to his conviction or sentence, although he reserved his
right to challenge a sentence exceeding the statutory maximum or an upward
sentencing departure not requested by the Government. The district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-41413     Document: 00512282090     Page: 2   Date Filed: 06/20/2013

                                  No. 11-41413

ultimately imposed a sentence of 210 months in prison, at the bottom of the
applicable guidelines range, concurrent five- and three-year terms of supervised
release, and a fine of $5000.
        On appeal, Gonzalez asserts that the district court erred in determining
that he possessed a firearm during the commission of the drug trafficking
offense, which resulted in a two-level increase to the base offense level. He
maintains that the court also improperly applied a two-level enhancement for
his role in the offense. Gonzalez contends that his sentence is substantively
unreasonable in light of these purported errors and based on his contention that
the district court failed to consider various mitigating factors before its
imposition. The Government has moved to dismiss the case in light of the
waiver-of-appeal provision in the plea agreement; alternatively, the Government
requests an extension of time to file an appellate brief. Gonzalez has not
submitted a reply brief.
        Gonzalez’s claims do not fall within the listed exceptions to the appeal
waiver.     A review of the record indicates that Gonzalez knowingly and
voluntarily waived his right to appeal because he indicated that he had reviewed
and understood the waiver provision. See United States v. McKinney, 406 F.3d
744, 746 (5th Cir. 2005). The Government did not breach the plea agreement.
Therefore, the appeal waiver bars consideration of Gonzalez’s appellate issues.
Although a valid waiver does not implicate our jurisdiction, see United States v.
Story, 439 F.3d 226, 230 (5th Cir. 2006), Gonzalez’s appeal of his sentence is
clearly barred by the waiver. As a result, the Government’s motion to dismiss
the appeal is GRANTED, and the appeal is DISMISSED as frivolous. See United
States v. Jacobs, 635 F.3d 778, 783 (5th Cir. 2011); 5TH CIR. R. 42.2. The
Government’s alternative motion to extend time to file its brief is DENIED as
moot.




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