United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-20927 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KARLTON DOUGLAS COSTLY-REYES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-312-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Karlton Douglas Costly-Reyes pleaded guilty to a one-count

indictment charging him with being an alien found in the United

States after deportation following an aggravated felony

conviction. He argues that the district court plainly erred when

it determined that a prior conviction for burglary of a

habitation was a crime of violence under U.S.S.G. § 2L1.1 and

that his sentence should be reversed under United States v.

Booker,

(2005). The plea agreement contained a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20927 -2-

waiver-of-appeal provision in which Costly-Reyes waived his

statutory right to appeal the sentence imposed or the manner in

which it was determined with the exception that he could appeal a

sentence imposed above the statutory maximum or that was an

upward departure from the Sentencing Guidelines as set forth in

.

The Government argues that Costly-Reyes’s appeal of his

sentence must be dismissed because he knowingly and voluntarily

waived his right to appeal his sentence and his challenges to his

sentence do not fall within the reserved exceptions to the

waiver. Costly-Reyes has not addressed the waiver issue. A

defendant may waive his statutory right to appeal as part of a

valid plea agreement if the waiver is knowing and voluntary.

United States v. Melancon,

(5th Cir. 1992);

United States v. Robinson,

, 518 & n.2 (5th Cir.

1999); FED. R. CRIM. P. 11(b)(1)(N).

In United States v. Cortez,

(5th Cir.),

cert. denied,

(2005), this court enforced an

appeal-waiver provision substantively identical to the one in

Costly-Reyes’s plea agreement. Because the record shows that

Costly-Reyes knowingly and voluntarily waived his right to appeal

any sentence that did not exceed the statutory maximum of 20

years or was not an upward departure from the Guidelines, the

waiver provision is effective and bars Costly-Reyes from

challenging his sentence. This part of the appeal is dismissed. No. 04-20927 -3-

Costly-Reyes also argues that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional.

Costly-Reyes’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998). We

need not decide whether this claim is barred by Costly-Reyes’s

appeal waiver because the issue is foreclosed. Although Costly-

Reyes contends that Almendarez-Torres was incorrectly decided and

that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey,

(2000), we have repeatedly rejected such arguments on the

basis that Almendarez-Torres remains binding. See United States

v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005). This part of the judgment is affirmed.

DISMISSED IN PART, AFFIRMED IN PART.