* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50558

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO IGNACIO MENDEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:03-CR-1138-ALL-KC 

--------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Julio Ignacio Mendez (“Mendez”) appeals from his guilty-plea

conviction for conspiracy to possess with intent to distribute

five kilograms or more of cocaine. Mendez contends that the

district court misapplied the Sentencing Guidelines by

attributing to him, pursuant to U.S.S.G. § 1B1.3, an additional

10.08 kilograms of cocaine. Specifically, he argues that he was

involved in delivering only 4.92 kilograms and had no knowledge

that his co-defendants had negotiated a total of 15 kilograms of

cocaine with an undercover agent. Mendez also contends that the
No. 04-50558

-2-

district court’s determination that he was responsible for an

additional 10.08 kilograms of cocaine is unconstitutional under

Blakely v. Washington, 124 S. Ct. 2531 (2004), because he

admitted to conspiring to possess with the intent to distribute

only 4.92 kilograms of cocaine. Mendez further contends that the

district court erred in denying him a minor role adjustment.

Mendez argues that he is entitled to appeal his Blakely

claim, despite an appeal waiver, which excluded only an upward

departure, because his Blakely claim “involves an issue of

constitutional dimension.” Mendez further argues that he is

entitled to appeal his sentence because the statutory waiver of

appeal, which he executed in his plea agreement, was not done 

knowingly. He contends that his appeal waiver was unknowing and

involuntary because he was in “a lot of pain” due to a recent

surgery. He also argues that the district court made no inquiry

into whether he understood that he was waiving his right to

appeal any sentence imposed by the district court. 

The record indicates that Mendez’s waiver was knowing and

voluntary. See United States v. Robinson, 187 F.3d 516, 518 

& n.2 (5th Cir. 1999). The district court specifically advised

Mendez that, pursuant to the plea agreement, he could appeal his

sentence only if there was an upward departure. Mendez responded

that he understood. Prior to accepting Mendez’s guilty plea, the

district court asked Mendez’s counsel if he had any concerns

regarding the competency of his client. Mendez and his attorney
No. 04-50558

-3-

assured the district court that, despite his health, he was

competent to enter his guilty plea and understood the

consequences of his guilty plea, including the waiver-of-appeal

provision. Because Mendez waived the right to appeal his

sentence, we do not address his contentions regarding his

sentence, including his Blakely claim. See United States v.

McKinney, F.3d , No. 04-41223, 2005 U.S. App. LEXIS 6530,

at *5-6 & nn.2-3 (5th Cir. April 15, 2005); United States v.

Melancon, 972 F.2d 566, 567 (5th Cir. 1992).

AFFIRMED.