No. 99-50957 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50957 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENE TERRAZAS-ACOSTA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-713-1-DB -------------------- April 13, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Rene Terrazas-Acosta appeals the sentence imposed following

his guilty-plea conviction of illegal reentry into the United

States following deportation in violation of

(a)

& (b)(2). He argues that the district court mistakenly believed

that it lacked the authority to depart downward based on his

cultural assimilation into the United States. The record

indicates that the district court recognized its authority to

depart downward based on cultural assimilation but determined

that a downward departure was not warranted based on the facts of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-50957 -2-

the case. Accordingly, this court lacks jurisdiction to review

the district court’s decision. See United States v. Reyes-Nava,

(5th Cir. 1999).

This court notes that in his plea agreement Terrazas-Acosta

agreed to waive the right to appeal his sentence except in

certain circumstances which do not exist here. However, the

Government makes no mention on appeal of this waiver. Nor has

the transcript of the plea hearing been included in the appellate

record, which precludes this court from determining whether or

not the waiver was informed and voluntary. The knowing and

voluntary waiver in a plea agreement of the right to appeal has

been approved by this court. See United States v. Portillo,

(5th Cir. 1994); United States v. Melancon,

(5th Cir. 1992). This court is at a loss to

understand why the Government has not raised the issue of waiver

in this case, and why defense counsel did not include a

transcript of the Rule 11 hearing in the record.

APPEAL DISMISSED.