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

                                                                 FILED
                                                                January 5, 2009
                               No. 07-10564
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RENE BAZAN

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 3:05-CR-186-13


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Rene Bazan appeals the 120-month sentence imposed following his guilty
plea conviction of conspiracy to possess with intent to distribute 100 kilograms
or more of marijuana.     Bazan pleaded guilty pursuant to a written plea
agreement, wherein Bazan agreed to waive his right to appeal his conviction and
sentence except in limited circumstances. Bazan acknowledges the appeal
waiver, but argues that he reserved his right to raise an ineffective assistance
of counsel claim and to appeal a sentence in excess of the statutory maximum.

      *
      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should not be published and is not precedent except under the limited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. 07-10564

      The Government has filed a motion for dismissal or summary affirmance,
arguing that Bazan’s ineffective assistance of counsel claim is not ripe for review
and his appeal of his sentence is barred by the waiver-of-appeal provision in the
plea agreement. Alternatively, the Government seeks an extension of time to
file a merits brief. Our review of the record shows that Bazan’s appeal waiver
was knowing and voluntary. See United States v. McKinney, 406 F.3d 744, 746
(5th Cir. 2005).
      Bazan argues that his trial counsel rendered ineffective assistance by
failing to detect a clerical error concerning the amount of drugs attributable to
him in the stipulated facts contained in the Factual Resume. He argues that
this error was carried forward to sentencing when counsel failed to object to the
computations contained in the presentence report, which based his offense level
on the amount of drugs set forth in the Factual Resume. The record in this case
is not sufficiently developed to permit a fair evaluation of Bazan’s ineffective
assistance of counsel claim. See United States v. Gulley, 526 F.3d 809, 821 (5th
Cir.), cert, denied, ___ S. Ct. ___, 2008 WL 2463795 (2008); United States v.
Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). Bazan is not precluded from filing
a 28 U.S.C. § 2255 within one year of the date his conviction becomes final.
      Bazan also argues that his 120-month sentence exceeds the statutory
maximum. He argues that the statutory maximum in this case was limited to
105 months, which represents the upper limit of the guidelines range of
imprisonment calculated using the amount of drugs Bazan claims he is
responsible for.
      This court has previously determined that the term “statutory maximum”
in a waiver-of-appeal provision means the maximum penalty provided in the
statute of conviction. See United States v. Bond, 414 F.3d 542, 545-46 (5th Cir.
2005).   The statutory maximum penalty for Bazan’s offense is 40 years.
21 U.S.C. § 841(b)(1)(B)(vii). Bazan’s sentence does not exceed the statutory



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maximum. Therefore, Bazan’s appeal of his sentence is barred by the waiver-of-
appeal provision contained in the plea agreement.
      The judgment is AFFIRMED. The Government’s motion for summary
affirmance is GRANTED. The Government’s motion to dismiss the appeal and
alternate motion for an extension of time to file a merits brief are DENIED.




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