United States v. Yarbrough

176 F. App'x 461

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III Clerk No. 04-20101 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DIONNE YARBROUGH,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-293-1 --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Dionne Yarbrough appeals the 42-month sentence imposed by

the district court following his guilty plea conviction for

possession of stolen mail matter. He argues for the first time

on appeal that the district court violated his Sixth Amendment

rights by enhancing his sentence based on facts that were not

admitted by him or found by a jury beyond a reasonable doubt. He

argues that this was constitutional error in light of the holding

in United States v. Booker, 543 U.S. 220 (2005).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20101 -2-

The Government argues that, as part of his plea agreement,

Yarbrough waived his right to appeal his sentence or the manner

in which it was determined. Yarbrough counters that he could not

have waived a right that was not recognized at the time he

executed the waiver. He argues further that the appeal waiver

does not bar his claim, which effectively is a claim that his

sentence exceeds the statutory maximum.

The record reflects that Yarbrough knowingly and voluntarily

waived his right to appeal his sentence. See United States v.

Burns, 433 F.3d 442, 450 (5th Cir. 2005); United States v. Bond,

414 F.3d 542, 545-46 (5th Cir. 2005); United States v. Cortez,

413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502

(2005). Yarbrough’s appeal waiver is enforceable and bars his

claims on appeal.

AFFIRMED.