### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 50213 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v.
EDGAR ACOSTA , Defendant

- Appellant

.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:14

- CR

- 1

- 1

Before KING, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Edgar Acosta pleaded guilty pursuant to a plea agreement to conspiracy to import marijuana. In the plea agreement, Acosta waived the right to appeal his sentence on all grounds and retained the right to challenge his sentence only to the extent that it re sulted from a violation of his constitutional rights based up on the ineffective assistance of counsel or prosecutorial misconduct of

* Pursuant to 5 TH 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 January 5, 2016

Lyle W. Cayce Clerk Case: 15-50213 Document: 00513329204 Page: 1 Date Filed: 01/05/2016No. 15

- 50213

2 a constitutional dimension . The district court varied downwardly from the advisory guidelines range and sentenced Acosta t o 24 months of imprisonment. Acosta argues that the district court wrongly determined his base offense level and, as a result, incorrectly calculated his advisory guidelines range. He asserts that he was not responsible for the drugs attributed to him as relevant conduct and that the district court violated the Sixth Amendment by assigning to him drug amounts to which he did not admit and which a jury did not find beyond a reasonable doubt. The Government contends that the appeal waiver in the plea agr eement bars Acosta’s claim. We review the validity of an appeal waiver de novo. United States v. Burns , 433 F.3d 442, 445 (5th Cir. 2005).
The record establishes that Acosta knowingly and voluntarily waived his right to appe al. Acosta knew that he had the right to appeal, indicated that he reviewed and understood the waiver, and understood that he was waiving his appellate rights under the terms of the waiver. See United States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005) . The Government complied wi th the plea agreement and intends to enforce the appeal waiver , which includes the claim that Acosta seeks to assert

. See United States v. Story , 439 F.3d 226, 231 (5th Cir. 2006); United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005); United States v. Gonzalez , 309 F.3d 882, 886 (5th Cir. 2002) . Thus, the appeal waiver bars Acosta’s argument. Acosta also argues that his trial counsel rendered ineffective assistance by not challenging the reasonableness of the sentence . To the extent that this

argume nt falls within an exception to the waiver, the record is not sufficiently developed to enable us to consider this claim fairly. Accordingly, we decline to consider it on direct appeal without prejudice to any right Acosta has to raise
it on collateral re view. See United States v. Isgar , 739 F.3d 829, 841 (5th Cir.), cert. denied , 135 S. Ct. 123 (2014). Case: 15-50213 Document: 00513329204 Page: 2 Date Filed: 01/05/2016No. 15

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3 Thus , Acosta has asserted claims that are barred by the appeal waiver or not suitable for resolution on appeal . Accordingly, the appeal is dismissed. See United States v. Walters , 732 F.3d 489, 491 (5th Cir. 2013). APPEAL DISMISSED. Case: 15-50213 Document: 00513329204 Page: 3 Date Filed: 01/05/2016