                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   June 2, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-11334
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GARY GENE KENNEDY,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 7:03-CR-3-ALL
                         --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     The Federal Public Defender appointed to represent Gary Gene

Kennedy on direct appeal has filed what he terms a “quasi-Anders”

brief.   He argues that, based upon extra-circuit law and the

district court’s alleged misapplication of the sentencing

guidelines, the appeal-waiver provision in Kennedy’s plea

agreement is unenforceable and should be severed from the plea

agreement.     Counsel recognizes, however, that this court’s

jurisprudence and the plain language of the waiver preclude an

     *
        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that this opinion should not be published and is not precedent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. 03-11334
                                 -2-

appeal based upon the enhancement of his offense level under the

sentencing guidelines.   Counsel therefore asserts that, if we

decide the appeal waiver is enforceable, there are no

nonfrivolous issues for appeal, and he requests permission to

withdraw pursuant to Anders v. California, 386 U.S. 738, 744

(1967).

     We have reviewed the record and, based upon this court’s

jurisprudence, the guilty plea and appeal waiver were knowing and

voluntary, and Kennedy is precluded from arguing that his

sentence was improperly enhanced under United States Sentencing

Guidelines § 2K2.1(b).   See United States v. Robinson, 187 F.3d

516, 517 (5th Cir. 1999); United States v. Melancon, 972 F.2d

566, 567, 568 (5th Cir. 1992).   We note that, even under our

sister circuits’ jurisprudence regarding the enforceability of

appeal waivers, we would conclude that the appeal waiver

provision is enforceable.   See United States v. Teeter, 257 F.3d

14, 24, 25-27 (1st Cir. 2001); United States v. De-La-Cruz

Castro, 299 F.3d 5, 12-14 (1st Cir. 2002); United States v. Rosa,

123 F.3d 94, 96, 101-02 (2d Cir. 1997); United States v. Goodman,

165 F.3d 169, 174-75 (2d Cir. 1999); United States v. Khattak,

273 F.3d 557, 563 (3d Cir. 2001); United States v. Brown, 232

F.3d 399, 403 (4th Cir. 2000); United States v. Andis, 333 F.3d

886, 890, 891-92 (8th Cir. 2003).
                           No. 03-11334
                                -3-

     Accordingly, the motion for leave to withdraw is GRANTED,

counsel is excused from further responsibilities herein, and the

APPEAL IS DISMISSED.   See 5TH CIR. R. 42.2.
