United States v. Darbonne

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40551
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON KEITH DARBONNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CR-47-ALL
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Byron Keith Darbonne pleaded guilty to two counts of using a
communication facility to facilitate the commission of a felony.
Darbonne expressly waived the right to appeal his conviction and
sentence. Darbonne, however, reserved the right to appeal if
the district court imposed a sentence that was not in accordance
with the terms of the agreement or if ineffective assistance of
counsel affected the validity of the waiver of appeal. The
district court sentenced Darbonne to 48 months of imprisonment on

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No. 06-40551
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each count with the terms to be served consecutively, for a total
of 96 months in prison.
Darbonne argues that his sentence was unreasonable following
United States v. Booker, 543 U.S. 220 (2005). The Government
argues that the waiver clause is valid and should be enforced.
The record reflects that Darbonne knowingly and voluntarily
waived his appellate rights. See United States v. Melancon,
972 F.2d 566, 567-68 (5th Cir. 1992). Consideration of
Darbonne’s Booker-related claim is barred by the plain language
of the waiver. See United States v. Bond, 414 F.3d 542, 544
(5th Cir. 2005). Accordingly, we do not consider the merits of
Darbonne’s sentencing challenge, and the judgment of the district
court is AFFIRMED.

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