* 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this opinion should not be published and is not precedent except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

November 4, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-41709

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FIDEL ROBERTTO VASQUEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(4:04-CR-115-ALL)

Before BARKSDALE, STEWART, AND CLEMENT, Circuit Judges.

PER CURIAM: *

Fidel Roberto Vasquez ap peals the 96-month sentence imposed

following his guilty-plea conviction and sentence for il l egal

reentry following deportation in violation of 8 U.S.C. § 1326.

Vasquez contends the district court violated United States v.

Booker , 125 S. Ct. 738 (2005) when it sentenced him pursuant to a

mandatory application of the Sentencing Guidelines. He also claims

the enhancement of his sentence violate d the Sixth Amendment2

because it was based on f acts not admitted by him or proven to a

jury.

As Vasquez concedes, he did not object on these grounds in the

district court. Therefore, our review is only for plain error.

See United States v. Valenzuela-Quevedo

, 407 F.3d 728, 732 (5th

Cir.), cert. denied

, 2005 WL 1811485 (U.S. 3 Oct. 2005) (No. 05-

5556). Accordingly, Vasquez must show obvious error that affects

his substantial rights. S ee United States v. Mares

, 402 F.3d 511,

520 (5th Cir.), c ert. denied

, 2005 WL 816208 (U.S. 3 Oct. 2005)

(No. 04-9517).

Before applying this standard, we must address Vasquez’s plea

agreement, which contained a provision waiving the right to appeal

other than for: “(a) any punishment imposed in excess of the

s tatutory maximum; (b) any upward departure from the guidelin e

range deemed most applicable by the sentencing court; (c)

arithmetic errors in the guidelines calculations; and (d) a claim

of ineffective assistance of counsel”. Vasquez does not explicitly

raise any of these four bases on appeal, and our precedent

forecloses a claim that a sentence given pursuant to the mandatory

guidelines is an upward departure. U nited States v. McKinney

, 406

F.3d 744, 746-47 (5th Cir. 2005).

Neither Vasquez nor the government addresses the effect of the

appeal-waiver, which we may examine sua sponte

. S ee United States

v. Martinez

, 263 F.3d 436, 438 (5th Cir. 2001); Unit ed States v.3

Rhodes

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

provision where Government expressly declined to rely on it). In

this instance, we need not do so, because Vasquez’s appeal fails

under the applicable plain error standard of review.

To establish that a Booker error affects substantial rights,

Vasquez must show the district court would ha ve reached a

significantly different result under an advisory Guidelines system.

Mares

, 403 F.3d at 521. V asquez fails to point to anything in the

record indicating the district court would have imposed a different

sente nce h ad it known the Sentencing Guidelines were advisory.

Given the lack of any indication in the record that the district

court would have reached a different conclusion, Vasquez has failed

to establish plain error. See id. at 520-22.

Counsel are cautioned that future failure to brief the effect

of an appeal-waiver may result in sanctions.

AFFIRMED