United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 30, 2006
Charles R. Fulbruge III
Clerk
No. 04-20891
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GIOVANNY JARAMILLO, also known as Jhon Antonio Carceres,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-193-1
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Giovanny Jaramillo appeals his guilty-plea sentence for
possession with intent to distribute one kilogram or more of
heroin. He argues, for the first time, that, because Government
objected to the probation officer’s recommendation for
safety-valve relief, and remained silent as to the probation
officer’s recommendation for the denial of a reduction for
acceptance of responsibility, the Government manifested its
intent to renounce the plea agreement.
*
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this opinion should not be published and is not precedent except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. 04-20891
-2-
Whether the Government has breached a plea agreement is a
question of law subject to de novo review; however, when the
defendant does not raise the issue at sentencing, this court’s
review is for plain error. United States v. Reeves, 255 F.3d
208, 210 (5th Cir. 2001).
In the plea agreement, the Government pledged to not oppose
a downward departure for acceptance of responsibility if
Jaramillo met the requirements of U.S.S.G. § 3E1.1 and the
reduction was recommended by the presentence report (PSR). The
PSR did not recommend that Jaramillo receive a reduction for
acceptance of responsibility. Also, the plea agreement did not
require that the Government refrain from opposing Jaramillo’s
request for safety-valve relief. Consequently, the Government
did not breach the plea agreement and Jaramillo has not shown
error, plain or otherwise.
The Government contends that, because it did not breach the
plea agreement, the appellate waiver provision in the agreement
is valid and Jaramillo’s appeal should be dismissed. This court
reviews de novo whether a waiver provision bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). A
defendant may waive his statutory right to appeal as part of a
valid plea agreement, provided that the waiver is knowing and
voluntary. United States v. Robinson, 187 F.3d 516, 517 (5th
Cir. 1999). When the record shows that the defendant read and
understood the plea agreement and that he raised no question
No. 04-20891
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regarding the sentence appeal waiver provision, he will be held
to the bargain that he has struck. United States v. Portillo,
18 F.3d 290, 292-93 (5th Cir. 1994).
Here, the record reflects that Jaramillo read and understood
the plea agreement and raised no question regarding the sentence
appeal waiver provision. As such, Jaramillo’s appeal waiver is
valid.
Jaramillo argues that the enhancement of his sentence for
obstruction of justice based on judicial fact-finding violates
the principles announced by the Supreme Court in United States v.
Booker, 543 U.S. 220, 244 (2005). Under the terms of the appeal
waiver, Jaramillo waived the right to appeal his plea, his
conviction and sentence, or the manner in which his sentence was
determined based on the grounds set forth in 18 U.S.C. § 3742,
except for an upward departure. His appeal does not fall under
any exceptions to the waiver and his appeal is barred. See
United States v. Bond, 414 F.3d 542, 545-46 (5th Cir. 2005)
(holding that the “‘statutory maximum’ in an appeal waiver means
‘the upper limit of punishment that Congress has legislatively
specified for violations of a statute’”). Accordingly,
Jaramillo’s appeal is dismissed.
APPEAL DISMISSED.