                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                          March 2, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                             No. 04-41746
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

            versus


     ABEL HERNANDEZ-PINEDA,

                                                Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 2:04-CR-214-1



Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Abel    Hernandez-Pineda     (Hernandez)     appeals    the     108-month

sentence    imposed   following    his   guilty    plea     conviction       for

conspiracy to possess with intent to distribute approximately 12

kilograms of heroin.      Hernandez argues that the district court

erred by denying an offense-level reduction for his minimal role in

the offense.    The government asserts that Hernandez’s appeal is



     *
      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opinion should not be published and is not precedent except under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.
barred by a waiver-of-appeal provision in his plea agreement.

     At rearraignment, Hernandez acknowledged the existence of the

plea agreement and that he was waiving his right to appeal his

sentence.       He also stated that counsel had read the plea agreement

to him in Spanish, that he understood its terms, and that he was

entering into the plea voluntarily.                The district court also

advised    Hernandez     that   he    was   waiving   his    right   to   appeal.

Hernandez reserved only the right to appeal a sentence in excess of

the statutory maximum or a sentence that represented an upward

departure from the Sentencing Guidelines, which had not been

requested by the United States.

     As the government urges, Hernandez knowingly and voluntarily

waived    his    right   to   appeal,   and   as   neither    of   the    waiver’s

exceptions applies to the sole claim made in the instant appeal,

Hernandez’s appeal is barred by the waiver contained in the plea

agreement.       See United States v. Bond, 414 F.3d 542, 544 (5th Cir.

2005); United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).

Appellant presents no argument to the contrary.**

                                     AFFIRMED.




     **
      In any event, we also agree with the government’s alternative
argument, that Hernandez’s sole claim on appeal, that the district
court “abused its discretion, when it refused to make a downward
departure, based on appellant’s minimal participation,” is wholly
without merit.   That was a matter on which appellant bore the
burden of proof. We cannot say that the district court’s denial of
appellant’s claim of minimal participation was either clearly
erroneous, or an abuse of discretion, or unreasonable (or resulted
in an unreasonable sentence).
