United States v. Ramirez

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 5, 2000
• Docket: 98-21056
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-21056 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWIN DEJESUS RAMIREZ,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court for the Southern District of Texas USDC No. H-92-CR-295-3

January 5, 2000

Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Edwin DeJesus Ramirez appeals the district court’s amended

judgment following resentencing after the granting of relief,

pursuant to 18 U.S.C. § 3582(c)(2). He contends that the

district court abused its discretion on resentencing in failing

to impose a sentence at the low end of the guidelines range and

that the district court erred in not offering reasons for the

sentence imposed.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-21056 -2-

The Government contends that Ramirez’s appeal should be

dismissed because, under the terms of his plea agreement, Ramirez

waived the right to appeal his sentence unless the sentence was

based on an upward departure from the sentencing guidelines.

This court previously determined that the waiver provision was

informed and voluntary and was therefore enforceable. See United

States v. Ramirez, No. 95-20121 (5th Cir. Nov. 1, 1995).

Ramirez’s appellate brief does not address the validity or effect

of the waiver, and he has not filed a reply brief addressing the

Government’s waiver argument.

Because Ramirez’s arguments do not involve an upward

departure, the only permissible ground for appeal, they are

barred by the waiver provision in his plea agreement. The fact

that Ramirez challenges an amended judgment following

resentencing does not change this result. See United States v.

Capaldi, 134 F.3d 307, 308 (5th Cir.), cert. denied, 118 S. Ct.

2073 (1998). The appeal is frivolous, and it is DISMISSED. See

id.; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH

CIR. R. 42.2.

John T. Cox, III, Ramirez’s attorney on appeal, is ORDERED

to show cause, within fifteen days from the date of this order,

why sanctions should not be imposed against counsel for pursuing

this appeal in light of Ramirez’s waiver of his right to appeal

and the failure of counsel to address the waiver in his appellate

brief. Such sanctions may include not receiving any payment for

services rendered and expenses incurred on this appeal. See

United States v. Gaitan, 171 F.3d 222, 222-24 (5th Cir. 1999). No. 98-21056 -3-

APPEAL DISMISSED.