* 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

September 19, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20875

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARLOS ALONZO ANDRADE

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CR-35-ALL

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

Carlos Alonzo Andrade appeals his conviction and sentence for unlawful

possession of a firearm by a convicted felon; possession with intent to distribute

cocaine; possession with intent to distribute crack cocaine; and illegal reentry.

He challenges his sentence on the following bases: (1) he was erroneously found

in possession of narcotics and a firearm on the basis of “relevant conduct”; (2) he

should have been granted a two-level reduction in his offense level for acceptance

of responsibility; and (3) his criminal history score was incorrectly calculated. 
No. 05-20875

2

Andrade, however, pleaded guilty pursuant to a plea agreement that

contained an appeal waiver, which the Government seeks to enforce and which,

by its terms, bars consideration of his sentencing claims. Regarding his first

sentencing claim, Andrade argues that the district court was constitutionally

required to apply a higher burden of proof than preponderance of the evidence

when determining the quantity of drugs involved in relevant conduct. Despite

the validity of the appeal waiver, we note that this argument is foreclosed by

circuit precedent. United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.

denied, 546 U.S. 828 (2005); United States v. Harper, 448 F.3d 732, 735 (5th

Cir.), cert. denied 127 S. Ct. 285 (2006); United States v. Vittek, 228 F. App’x 469,

475-76 (5th Cir. May 16, 2007) (unpublished), petition for cert. filed (U.S. Aug.

14, 2007) (No. 07-5934). We decline to address Andrade’s remaining sentencing

claims because the appeal waiver bars consideration ofthose claims. See United

States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). A defendant may waive his

statutory right to appeal his sentence if the waiver is knowing and voluntary.

Id. Because Andrade stated at the Rule 11 hearing that he read and understood

his plea agreement, which included an explicit, unambiguous waiver of appeal,

we find that the waiver was both knowing and voluntary. United States v.

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

Andrade contends that ineffective assistance of counsel rendered invalid

his guilty plea and the appeal waiver provision therein. Although we have held

that an ineffective assistance of counsel argument survives a waiver of appeal

when the claimed assistance directly affected the validity of that waiver or the

plea itself, United States v. White, 307 F.3d 336, 343 (5th Cir. 2002), we have

also held that we will not address such claims for the first time on direct appeal

where they were not sufficiently developed in the trial court and the record is

sparse. United States v. Brewster, 137 F.3d 853, 859 (5th Cir.), cert. denied 525

U.S. 908 (1998); United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). This

is such a case, where the district court never directly addressed the possibility
No. 05-20875

3

of ineffective assistance. Andrade can raise this argument under 28 U.S.C.

§ 2255. See Brewster, 37 F.3d at 859; United States v. Grammas, 376 F.3d 433,

436 n.2 (5th Cir. 2004).

Insofar as Andrade challenges, for the first time on appeal, the

enforceability of the appeal waiver provision on the bases that (1) the plea

agreement failed pursuant to U.S.S.G. § 6B1.4(b) to identify the facts that were

in dispute and (2) the plea agreement did not properly communicate the 10-year

minimum sentence inherent in the plea, he has not shown plain error. See

United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Angeles-Mascote,

206 F.3d 529, 530 (5th Cir. 2000). We find that the factual stipulation contained

in the plea agreement clearly indicated that whether Andrade resided in the

apartment containing the additional narcotics and the firearm was a fact in

dispute. At the sentencing hearing, the district court resolved this factual

dispute and found by a preponderance of the evidence that the additional

narcotics and the firearm in the apartment should be attributed to Andrade as

relevant conduct. Furthermore, we find that both the plea agreement and the

district court properly communicated the 10-year minimum sentence inherent

in the plea.

For the first time in his reply brief, Andrade argues that (1) the waiver of

appeal provision failed to contain a “clear scope” because it did not explain 18

U.S.C. § 3742; (2) he did not understand the consequences of the waiver

provision; (3)the Government’s knowledge of counsel’s alleged conflict of interest

gave it unclean hands, rendering the waiver involuntary; and (4) enforcement

of the waiver would constitute a miscarriage of justice. Because these

arguments were not raised in his original brief on the merits, they are not

entertained. Avants, 367 F.3d at 449.

AFFIRMED.