* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 21, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

03-50602

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO RODRIGUEZ, also known as Joseph Armando Ramirez,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(MO-02-CR-105-ALL)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: *

Mario Rodriguez appeals his guilty-plea conviction and

sentence (including an upward departure) for possession of a

firearm during and in relation to a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1). Court-appointed counsel filed

a motion to withdraw, pursuant to Anders v. California

, 386 U.S.

738 (1967); but a member of this court found a potentially

nonfrivolous app ellate issue: whether Rodriguez’s plea was

rendered i nvoluntary by the magistrate judge’s failure to advise2

him during rearraignment, pursuant to F ED

. R. C RIM

. P. 11(b)(1)(M),

that the court could depart upward from the applicable Sentencing

Guidelines range. The order denying leave to withdraw also stated

that counsel “should ... include an explanation of the effects of

the waiver-of-appeal provision”. In response, however, counsel

filed a merits br ief that neither addresses the voluntariness of

Rodriguez’s plea in the light of Rule 11(b)(1)(M) nor mentions the

waiver provision. (The order pre-dated United States v. Booker

,

125 S. Ct. 738, (2005) (holding Sentencing Gu idelines only

advisory).)

As to the merits, Rodriguez has not established that his

guilty plea was rendered involuntary. Because he did not object in

district court during rearraignment, Rodriguez’s claims are

reviewed only for plain error. S ee United States v. Vonn

, 535 U.S.

55, 59 (2002). He has not shown that his substantial rights were

affected by any error in the magistrate judge’s explanation of the

availability of appointed counsel at trial. S ee United States v.

Olano

, 507 U.S. 725, 731-37 (1993). In addition, the magistrate

judge appropriately advised Rodriguez: about the elements of the

offense to which he pleaded guilty, see United States v. CeballosTorres

, 218 F.3d 409, 413 (5th Cir.), amended on rehearing in part

by , 226 F.3d 651 (5th Cir. 2000), and cert. denied , 531 U.S. 1102

( 2001); and that the statutory maximum sentence was life

imprisonment, see United States v. Sias

, 227 F.3d 244, 246-47 (5th3

Cir. 2000). Rodriguez has not established a violation of the Court

Interpreters Act, 28 U.S.C. § 1327(d)(1); the record reflects that

he had access to an interpreter at every stage of the proceeding.

Although the parties did not address it, this court may sua

sponte consider the waiver-of-appeal provision. S ee United States

v. Martinez , 263 F.3d 436, 438 (5th Cir. 2001); cf. United States

v. Rhodes

, 253 F.3d 800, 804 (5th Cir. 2001)(disregarding a waiver

provision if the Government expressly chooses not to rely upon it).

Rodriguez voluntarily waived his right to appeal his conviction and

sentence, other than claims of ineffective assistance of counsel or

prosecutorial misconduct of constitutional dimension not known to

him at the time of his sentencing

. S ee United States v. Melancon

,

972 F.2d 566, 567-68 (5th Cir. 1992). Consequently, review of

certain of Rodriguez’s claims is barred: that the district court

erred in adopting the presenten ce report, despite misstatements

contained therein; that the district court wrongly departed upward,

despite the Government’s failure to give notice of its intent to

seek an upward departure under 21 U.S.C. § 851; and that the upward

departure violates the Sixth Amendment

. S ee United States v.

McKinney

,

__ F.3d

__, 2005 WL 887153, at *2-3 (5th Cir. 15 Apr.

2005) (holding that, absent a specific provision to the contrary,

a valid appeal-waiver provision i n a plea agreement precludes a

claim of Sixth Amendment error under Booker ).4

Rodriguez also contends: the Government improperly filed a

superseding indictment to establish great er bargaining power and

breached the plea agreement by requesting an upward departure.

Even if these claims a llege prosecutorial misconduct of

constitutional dimension, Rodriguez was aware of them by the time

of sentencing. Therefore, they are barred by the waiver provision.

As discussed, counsel fai led to address the issues

specifically noted by this court in its order denying him leave to

withdraw. Accordingly, counsel (David K. Sergi) is O RDERED to show

cause within 30 days why he should not be sanctioned for such

failure to comply with a court order.

AFFIRMED; COUNSEL ORDERED TO SHOW CAUSE WHY SANCTIONS SHOULD NOT

BE IMPOSED