Conference Calendar UNITED STATES OF AMERICA v. Derek Ernest Austin

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10861
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DEREK ERNEST AUSTIN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:05-CR-1-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Derek Ernest Austin appeals the 120-month sentence imposed following
his guilty plea conviction for being a felon in possession of ammunition. He
argues that his sentence is unconstitutional in light of United States v. Booker,
543 U.S. 220 (2005), because it was based on facts not presented to a jury and
to which he did not admit. The Government seeks to enforce the appeal waiver
provision in Austin’s plea agreement and moves for summary affirmance or
dismissal.
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2007
Charles R. Fulbruge III
Clerk

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No. 06-10861
2
Austin’s appeal waiver was knowing and voluntary, and therefore, the
waiver is enforced. See United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir.
1992). Moreover, Austin’s argument does not come within one of the
enumerated exceptions to his appeal waiver. As such, we do not address the
merits of Austin’s challenge to his sentence.
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED. The Government’s motion to
dismiss is DENIED. The Government’s alternative motion for an extension of
time is DENIED as moot.

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