USA v. Rey Herevia

Filing

Case: 09-41273

Document: 00511196705

Page: 1

Date Filed: 08/06/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41273 S u m m a r y Calendar August 6, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R E Y DAVID HEREVIA, also known as Ray David Barrios Herebia, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 1:09-CR-845-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* R ey David Herevia challenges his within-guidelines sentence of 57 months' im p r is o n m e n t , imposed following his guilty-plea conviction for illegally r e e n te r in g the United States after having been removed following a conviction fo r an aggravated felony, in violation of 8 U.S.C. § 1326. Herevia claims his s e n te n c e was unreasonable both because of the age of the offense used to e n h a n c e his sentence and because of his assimilation in the United States. As

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Case: 09-41273

Document: 00511196705 Page: 2 No. 09-41273

Date Filed: 08/06/2010

a part of his written plea agreement, however, Herevia waived his right to a p p e a l his sentence or the manner in which it was determined on any ground. O n appeal, Herevia does not challenge the validity of the appeal waiver, b u t instead contends that the Government has not adequately sought to enforce it. We disagree. The Government has asserted in its brief that it seeks

e n fo r c e m e n t of the waiver, and that it bars this appeal. See United States v. S to r y , 439 F.3d 226, 231 (5th Cir. 2006). Although a valid appeal waiver does n o t implicate our jurisdiction, see id. at 230, Herevia's appeal of his sentence is c le a r ly barred by the waiver. DISMISSED.

2