### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41413 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ANGEL MARIO GONZALEZ, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-164-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Angel Mario G onzalez pleaded guilty, p ursuant to a written plea agreement, to one count of conspiring to possess with intent t o distribute more than five kilograms of cocaine and one count of transaction money laundering. Within the plea agreement, Gonzalez waived h i s r i ght to appeal or to file a postconviction challenge to his conviction or sentence, although h e reserved his right to challenge a sentence exceeding the statutory max i m u m o r an upward sentencing departure n o t requested by t he Government. The district court U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-41413 Document: 00512282090 Page: 1 Date Filed: 06/20/2013No. 11-41413

ultimately imposed a sentence of 210 m onths in prison, at the bottom of the applicable guidelines range, concurrent f ive- and t hree-year terms of supervised release, and a fine of $5000. On appeal, Gonzalez asserts that the d i strict court erred in determining that he possessed a firearm during th e c o m m i ssion of the drug trafficking offense, which resulte d in a two-level i ncrease to the base o ffense level. He maintains that the c ourt also improperly a p p l i e d a two-level enhancement for his r ole in the o ffense. Gonzalez contends that his s entence is substantively unreasonable in l ight of t hese purported errors and based on his contention that the district court f

ailed to consider various mitiga t i n g factors before its imposition. The Government has moved to dismiss the case in light of the

w a iv er-of-appeal provision in the plea agreement; a l t e r n at iv e l y , t h e G o v e r n m e n t requests an extension of time to f i l e a n appellate brief. G onzalez has not submitted a reply brief. Gonzalez’s claims do not fall within the listed e xcept i o n s to t he appeal waiver. A review of the r ecord i ndicates that Gonzalez knowi n g l y a n d voluntarily waived his right to appeal because he indicated that he had r eviewed and understood the waiver provision. See United States v. McKinney , 406 F.3d 744, 746 ( 5 th C ir. 2005). The Government did not breach the plea agreement. Therefore, the a ppeal waiver bars consideration o f Gonzalez’s a ppellate issues. Although a valid waiver does not implicate o ur jurisdiction, see United States v. St o r y , 4 3 9 F .3d 226, 230 (5th Cir. 2 006), Gonzalez’s appeal of his sentence is clearly b arred by the waiver. As a result, the Government’s motion to dismiss the appeal is GRANTED, and the appeal is DISMISSED as frivolous. See United States v. Jacobs , 635 F.3d 778, 783 ( 5 t h Cir. 2011); 5 T H C I R
. R. 42.2. The G o v ernment’s alternative motion to extend time to file i ts brief is DENIED as moot.

2 Case: 11-41413 Document: 00512282090 Page: 2 Date Filed: 06/20/2013