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. 08-50765

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RICARDO GARCIA ARMENDARIZ, also known as Ricky, also known as Little

Ricky, also known as Trainer, also known as The Mexican

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:05-CR-48-5

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Ricardo Garcia Armendariz appeals his guilty plea conviction and sentence

for conspiracy to manufacture, distribute, and possess with intent to distribute

more than 50 grams of cocaine base. Armendariz argues that counsel rendered

ineffective assistance of counsel by failing to adequately explain the implications

of the plea agreement. He also challenges the district court’s decision to deny a

mitigating role adjustment and safety role adjustment. The Government argues

United States Court of Appeals

Fifth Circuit

F I L E D

April 24, 2009

Charles R. Fulbruge III

Clerk
No. 08-50765

2

that the appeal should be dismissed because Armendariz waived his right to

appeal and the waiver is valid and enforceable. The Government also asserts

that Armendariz’s ineffective assistance of counsel claim is without merit.

This court reviews the validity of an appeal waiver de novo. See United

States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). Our review of the record

shows that Armendariz’s waiver was knowing and voluntary. See United States

v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). 

Armendariz’s safety valve and mitigating role arguments do not fall within

the exceptions to the waiver. Thus, Armendariz cannot raise these claims on

appeal. Armendariz also asserts an ineffective assistance of counsel claim,

which does implicate an exception to the appeal waiver. Although this court

generally declines to review claims of ineffective assistance of counsel on direct

appeal, the record is sufficiently developed for the court to address the claim.

See United States v. Gulley, 526 F.3d 808, 821 (5th Cir.), cert. denied, 129 S. Ct.

159 (2008). Because the record reflects that counsel explained the implications

of the plea agreement to Armendariz, Armendariz’s ineffective assistance of

counsel claim is without merit. See Strickland v. Washington, 466 U.S. 668, 687

(1984). 

Armendariz argues, as he did in the district court in a motion filed

pursuant to 18 U.S.C. § 3582(c)(2), that his base offense level should be reduced

by two levels pursuant to Sentencing Guidelines Amendment 706. In general,

Amendment 706 reduced the base offense levels set forth in U.S.S.G. § 2D1.1(c)

applicable to crack cocaine offenses. However, the base offense level for offenses

involving 4.5 kilograms or more of crack cocaine is unchanged. Armendariz was

held accountable for 9 kilograms of crack cocaine and his original base offense

level was 38. Under the new amendments to § 2D1.1(c)(1), Armendariz’s base

offense level remains 38. Thus, his base offense level is unaffected by

Amendment 706 to § 2D1.1(c) and, concomitantly, the applicable guidelines

range of imprisonment was not lowered as a result of the amendment. Because
No. 08-50765

3

§ 3582(c)(2) authorizes a sentence reduction only when the sentencing range is

lowered by an amendment to the Guidelines, the district court did not abuse its

discretion in denying Armendariz’s motion for a reduction of sentence. 

AFFIRMED