Case: 12-40629 Document: 00512519090 Page: 1 Date Filed: 01/31/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-40629 January 31, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
v.
DELFINO RODRIGUEZ-ESTRADA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.
CARL E. STEWART, Chief Judge:
Defendant-Appellant Delfino Rodriguez-Estrada (“Rodriguez”) pleaded
guilty to being found in the United States after deportation. The plea
agreement contained a waiver provision, whereby Rodriguez agreed to waive
his right to appeal. On appeal, Rodriguez challenges the district court’s
imposition of a sixteen-level enhancement to his sentence pursuant to U.S.
Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii). He contends that this
issue does not fall within the purview of the appeal waiver and, therefore, may
be raised on appeal. Because we hold that this issue is encompassed within
Rodriguez’s appeal waiver, his appeal is DISMISSED.
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No. 12-40629
I.
Rodriguez was charged and eventually pleaded guilty to being found in
the United States after deportation, a violation of 8 U.S.C. § 1326(a)–(b). In
the plea agreement, Rodriguez agreed to waive his right to appeal.
The plea agreement read, in pertinent part:
The defendant agrees to waive the right to appeal the sentence
imposed or the manner in which it was determined on any
grounds set forth in Title 18 U.S.C. § 3742. . . . The defendant
waives the right to contest his/her conviction or sentence by means
of any post-conviction proceeding, including but not limited to
Title 28, U.S.C. § 2255.
In the presentence report (“PSR”), Rodriguez was assigned a base offense
level of eight. In addition, Rodriguez was assessed a sixteen-level increase
under § 2L1.2(b)(1)(A)(ii) for a previous conviction—a 2009 conviction in New
Jersey for aggravated assault. He also received a three-level reduction for
acceptance of responsibility, resulting in a total offense level of twenty-one.
Because he had a criminal history category of III, he had a sentencing guideline
range of forty-six to fifty-seven months. While the PSR described the New
Jersey conviction as a crime of violence, Rodriguez contested that
characterization and the corresponding sixteen-level enhancement.
During the rearraignment, the magistrate judge (“MJ”) reviewed the
plea agreement with Rodriguez. Rodriguez testified that he understood the
agreement and that his attorney had read and explained the agreement to him.
However, the MJ incorrectly informed Rodriguez that, while he was waiving
his right to appeal his conviction and sentence, he retained the right to assert
an ineffective assistance of counsel claim and a prosecutorial misconduct claim.
Rodriguez responded that he understood the plea agreement. Following the
prosecutor’s statement of the factual basis for the plea, Rodriguez stated that
he wished to reserve his right to object to the characterization of his New
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No. 12-40629
Jersey conviction as a crime of violence. The MJ responded that Rodriguez
reserved that right.
During his sentencing hearing, Rodriguez again asserted his argument
that the New Jersey conviction was not a crime of violence, but the district
court overruled his objection and found that the conviction was a crime of
violence. Pursuant to the plea agreement, the Government moved for a two-
level downward departure, which the district court granted. Rodriguez’s total
offense level changed to nineteen with a guideline range of thirty-seven to
forty-six months. The district court sentenced Rodriguez to thirty-seven
months in prison. The district court acknowledged that it chose to impose the
thirty-seven month sentence because Rodriguez gave up his right to appeal in
the plea agreement. In accordance with the plea agreement, the Government
recommended a sentence at the low end of the range. The district court further
stated that, in light of Rodriguez’s past arrests, it might have sentenced
Rodriguez at the high end of the guidelines range if not for the plea agreement.
Rodriguez timely appealed. 1
Rodriguez challenges the sixteen-level enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(ii) imposed by the district court. Additionally, he contends that
neither he nor the government intended to include the characterization of his
prior New Jersey conviction within the purview of the appeal waiver.
Therefore, he argues that his appeal is not barred. Before we address
Rodriguez’s challenge to his sentence, we must first determine whether he
waived his right to appeal this issue.
1In response, the Government filed a motion to dismiss Rodriguez’s appeal because
he waived his right to appeal. A panel of this court denied the motion to dismiss, reasoning
that it was possible that the waiver was not knowing and voluntary because the MJ
mischaracterized the appeal waiver at the rearraignment.
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No. 12-40629
II.
The validity of a party’s waiver of appeal is reviewed de novo. United
States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005). “A defendant may waive his
statutory right to appeal as part of a valid plea agreement, provided (1) his or
her waiver is knowing and voluntary, and (2) the waiver applies to the
circumstances at hand, based on the plain language of the agreement.” United
States v. Scallon, 683 F.3d 680, 682 (5th Cir. 2012) (internal quotation marks
and citation omitted) (per curiam).
When determining the proper scope of a waiver, courts utilize “ordinary
principles of contract interpretation.” United States v. Cooley, 590 F.3d 293,
296 (5th Cir. 2009). Although waivers are “interpreted narrowly against the
government,” id., courts “will not read ambiguity into an agreement in which
none readily manifests itself.” United States v. Lopez, 427 F. App’x 402, 403
(5th Cir. 2011) (per curiam) (unpublished) (citing United States v. Bond, 414
F.3d 542, 545 (5th Cir. 2005)). Thus, “[i]n the absence of evidence that the
parties to the agreement intended [] a specialized, non-natural definition, we
apply the term’s usual and ordinary meaning.” United States v. Jacobs, 635
F.3d 778, 781 (5th Cir. 2011) (per curiam) (internal quotation marks and
citation omitted) (second alteration in original). Rodriguez does not allege that
his appeal waiver was unknowing and involuntary. Therefore, we proceed to
address whether his waiver encompasses the proper characterization of his
prior New Jersey conviction.
III.
The appeal waiver explicitly and unambiguously encompassed “the right
to appeal the sentence imposed or the manner in which it was determined on
any grounds set forth in Title 18 U.S.C. § 3742.” Applying the ordinary
meaning of the language used in the waiver, the waiver expressly covers
Rodriguez’s right to challenge the New Jersey conviction. As evidence that the
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No. 12-40629
issue on appeal does not fall within the appeal waiver, Rodriguez relies on the
MJ’s statement during the rearraignment that Rodriguez retained the right to
object to the characterization of his prior New Jersey conviction. However, this
statement was made during the recitation of the factual basis for Rodriguez’s
plea. 2 While the MJ’s statement permitted Rodriguez to raise this objection
during sentencing, it did not carve out an exception to the appeal waiver.
During the rearraignment, Rodriguez acknowledged that he read and
understood the plea agreement, which, as noted above, explicitly encompasses
the characterization of his prior New Jersey conviction. 3 Accordingly, we hold
that the characterization of Rodriguez’s New Jersey conviction falls within the
scope of his appeal waiver. Therefore, Rodriguez has waived his right to raise
this issue on appeal, and we need not address Rodriguez’s challenge regarding
his sentence.
IV.
Because Rodriguez waived his right to appeal his sentence, his appeal is
DISMISSED.
2 The Court: Are those the facts, Mr. Young?
Mr. Young: Your Honor, they are, with the exception we reserve our right to
object to the characterization of his New Jersey conviction as an
aggravated felony or crime of violence. It appears it might be a
statute that has a []reckless standard and also could have been
a sentence that wouldn’t qualify as a felony, but we’ll handle that
--
The Court: You will reserve your right.
Mr. Young: Thank you.
3 Although the MJ incorrectly stated that Rodriguez retained the right to assert
ineffective assistance of counsel and prosecutorial misconduct claims, there was no
suggestion that Rodriguez retained the right to challenge the characterization of his New
Jersey conviction on appeal.
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