* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50544

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ADRIAN SANTA CRUZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CR-233-2

Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Adrian Santa Cruz pleaded guilty pursuant to a written plea agreement

to two counts of carjacking in violation of 18 U.S.C. § 2119, and to brandishing

a firearm during and in relation to a crime of violence in violation of 18 U.S.C.

§§ 2, 924(c)(1). Under the terms of the plea agreement, Santa Cruz expressly

waived the right to a direct appeal of his sentence on any ground, including any

appeal right conferred by 18 U.S.C. § 3742.

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-50544

Santa Cruz argues that his sentencing was unfair and his guilty plea was

not knowing or voluntary because the Government withheld evidence in

violation of the Fifth Amendment and Brady v. Maryland, 373 U.S. 83 (1963).

He also argues that his sentence violates his rights under the Sixth Amendment,

as interpreted in United States v. Booker, 543 U.S. 220 (2005) and Crawford v.

Washington, 541 U.S. 36 (2004), and that the district court made several errors

in applying the Guidelines. The Government seeks enforcement of the appealwaiver provision.

1. Santa Cruz argues that his guilty plea was not knowing and voluntary

because ofthe Government’s alleged Brady violations, which occurred before his

guilty plea was entered. This argument is foreclosed by our circuit precedent.

See Orman v. Cain, 228 F.3d 616, 617 (5th Cir. 2000) (“Brady requires a

prosecutor to disclose exculpatory evidence for purposes of ensuring a fair trial,

a concern that is absent when a defendant waives trial and pleads guilty.

Because the Supreme Court has yet to extend Brady to guilty pleas (let alone

extend it retroactively), the district court erred . . . .”); Matthew v. Johnson,

201 F.3d 353, 361-62 (5th Cir. 2000) (“Because a Brady violation is defined in

terms of the potential effects of undisclosed information on a judge’s or jury’s

assessment of guilt, it follows that the failure of a prosecutor to disclose

exculpatory information to an individual waiving his right to trial is not a

constitutional violation.”) (internal quotation omitted); see also United States v.

Ruiz, 536 U.S. 622, 634 (2002) (Thomas, J., concurring) (“The principle

supporting Brady was avoidance of an unfair trial to the accused. That concern

is notimplicated atthe plea stage regardless.”) (internal quotation omitted). But

see Erica G. Franklin, Waiving Prosecutorial Disclosure in the Guilty Plea

Process: A Debate on the Merits of “Discovery” Waivers, 51 STAN. L. REV. 567,
No. 07-50544

573 n.43 (1999) (collecting cases holding to the contrary). Moreover, Santa Cruz

expressly waived all pretrial discovery issues in his plea agreement. Further,

even after learning about these alleged Brady violations, Santa Cruz did not

move to withdraw his guilty plea before his sentencing and the trial court

committed no plain error. The issue is either waived or foreclosed in this court.

2. This court reviews de novo whether a waiver provision bars an appeal.

United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The record shows

that Santa Cruz was aware of his right to appeal and that he was waiving that

right by pleading guilty pursuant to his written plea agreement. Moreover, the

trial court carefully complied with the requirements of Federal Rule of Criminal

Procedure 11(b)(1)(N). Because the record reflects that Santa Cruz’s waiver of

appeal was knowing and voluntary, all of his sentencing claims are barred. See

United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).

Irrespective ofthe waiver-of-appeal provision, Santa Cruz’s constitutional

claims under Booker, Crawford, and Brady are meritless. His Booker and

Crawford arguments are foreclosed. See United States v. Mares, 402 F.3d 511,

519 (5th Cir. 2005) (holding post-Booker that the Guidelines are advisory and

“[t]he sentencing judge is entitled to find by a preponderance of the evidence all

the facts relevantto the determination of a Guideline sentencing range”); United

States v. Fields, 483 F.3d 313, 332 (5th Cir. 2007), cert. denied, 128 S. Ct. 1065

(2008) (Crawford does not bar use of testimonial hearsay in non-capital

sentencing). To the extent Santa Cruz argues that the Government’s alleged

Brady violations prevented him from presenting evidence at the sentencing

hearing that his co-defendant was more aggressive than he and that he saved

the victim’s life during the second carjacking, his arguments are entirely
No. 07-50544

speculative; he has made no attempt to demonstrate that allegedly withheld

statements were exculpatory as well as material.

Accordingly, the district court’s judgment is AFFIRMED.