IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51164 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FREDDIE LEE KELLY

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-201-ALL-OG -------------------- September 5, 2000

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Freddie Lee Kelly appeals his sentence following his guilty-

plea conviction for possessing with the intent to distribute

cocaine base. Kelly asserts that the Government breached the

plea agreement because its promised recommendation that Kelly be

sentenced at the bottom of the applicable guideline range was

vague, poorly delivered, and ambiguous with respect to which

guideline range was applicable. Kelly requests that this case be

remanded for resentencing before a different district court judge

at a hearing during which the Government would be required to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-51164 -2-

recommend a sentence at the bottom end of the 168-to-210-month

guideline range.

As part of his written plea agreement with the Government,

Kelly agreed to waive his right to appeal his sentence, except

with respect to an upward departure from the applicable guideline

range. At his rearraignment hearing, the magistrate judge

personally addressed Kelly and admonished him regarding his

waiver of appeal; Kelly stated that he understood the waiver.

Thus, the record shows that Kelly knowingly and voluntarily

waived his right to appeal his sentence. See United States v.

Robinson,

(5th Cir. 1999).

Because Kelly’s sentence was not based upon an upward

departure from the applicable guideline range and because Kelly’s

appeal is solely a challenge to his sentence, this appeal is

DISMISSED as waived.