UNITED STATES of America, Plaintiff-Appellee, v. Luis NAPOLES, Defendant-Appellant, 168 F. App'x 635

PER CURIAM: Luis Ñapóles is appealing his sentence imposed following his guilty plea convictions for conspiracy to money launder and possession with intent to distribute more than 500 grams of cocaine. Ñapóles was sentenced to concurrent terms of imprisonment of 240 months for the money laundering offense and 300 months for the drug-trafficking offense. Ñapóles argues for the first time on appeal that the district court violated his Sixth Amendment rights by enhancing his sentence based on facts that were not admitted by him or found by a jury beyond a reasonable doubt.

He argues that this was constitutional error in light of the holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Government argues that the appeal should be dismissed because, as part of his plea agreement, Ñapóles waived his right to appeal his sentence or the manner in which it was determined. Ñapóles did not address the waiver in his brief or in a reply brief. The record reflects that Napoles knowingly and voluntarily waived his right to appeal his sentence. See United States v. Burns, 433 F.3d 442, 450 (5th Cir.2005); United States v.

Bond, 414 F.3d 542, 545-46 (5th Cir.2005); United States v. Cortez, 413 F.3d 502, 503 (5th Cir.), cert. denied, - U.S. -, 126 S.Ct. 502, 163 L.Ed.2d 365 (2005). Because the waiver is valid, the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. Counsel Everto A. Villarreal is warned that pursuing an appeal despite a valid appeal waiver provision in the plea agreement and failing to address the waiver in a reply brief after it was raised by the Government in its brief is a needless waste of judicial resources and will invite sanctions. See United States v. Gaitan, 171 F.3d 222, 224 (5th Cir.1999).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.