          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                 February 4, 2009
                                 No. 08-40389
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ROSENDO MARTINEZ-FLORES

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:07-CR-390-1


Before KING, DENNIS, & OWEN, Circuit Judges.
PER CURIAM:*
      Rosendo Martinez-Flores pleaded guilty to conspiracy to possess with
intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
§ 846 and § 841(a)(1), (b)(1)(A). The district court sentenced Martinez-Flores to
the statutory minimum term of imprisonment, 120 months.              See §§ 846,
841(b)(1)(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should not be published and is not precedent except under the limited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. 08-40389

      On appeal, Martinez-Flores argues that the district court abused its
discretion when it denied his motion to withdraw guilty plea. Martinez-Flores
also argues that the district court erred when it failed to award him a two-level
reduction in his offense level pursuant to the “safety valve” provision of U.S.S.G.
§ 5C1.2. The Government contends that Martinez-Flores’s appeal is barred by
the appellate waiver provision in Martinez-Flores’s written plea agreement. The
Government alternatively argues that the district court did not err when it
denied Martinez-Flores’s motion to withdraw guilty plea.
      To enter a knowing and voluntary guilty plea, the defendant must have a
“full understanding of what the plea connotes and of its consequence.” Boykin
v. Alabama, 395 U.S. 238, 244 (1969). This court reviews de novo whether a
waiver of appeal bars an appeal. United States v. Baymon, 312 F.3d 725, 727
(5th Cir. 2002). To determine the validity of an appeal waiver, this court
conducts a two-step inquiry, asking 1) whether the waiver was knowing and
voluntary and 2) whether, under the plain language of the plea agreement, the
waiver applies to the circumstances at issue. United States v. Bond, 414 F.3d
542, 544 (5th Cir. 2005). In determining whether a waiver applies, this court
employs ordinary principles of contract interpretation, construing waivers
narrowly and against the Government. United States v. Palmer, 456 F.3d 484,
488 (5th Cir. 2006).
      In the instant case, the appeal waiver was knowing and voluntary.
Martinez-Flores, who is college-educated and speaks and reads English, signed
the plea agreement. At Martinez-Flores’s rearraignment, the district court
reviewed the plea agreement with Martinez-Flores, who indicated that he read,
understood, and discussed the agreement with his attorney before he signed the
agreement. In addition, the district court specifically reviewed the waiver
provision with Martinez-Flores, who indicated that he understood the terms of
the waiver. The record further indicates that the district court complied with
the dictates of Rule 11 of the Federal Rules of Criminal Procedure when it

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advised Martinez-Florez of his trial rights, his right to counsel, the nature of the
offense, the Government’s burden of proof, and the manner in which his sentence
would be determined.      As to each of these concerns, Martinez-Flores was
questioned by the district court and it was determined that he understood all of
his rights and all of these concepts.        Accordingly, Martinez-Flores’s plea
agreement, including the appellate waiver provision, was knowing and
voluntary. See Boykin, 359 U.S. at 242-44; Bond, 414 F.3d at 544.
      In addition, under the plain language of the plea agreement, the waiver
applies to the circumstances at issue.       Pursuant to the term of his plea
agreement, Martinez-Flores waived his right to appeal both his conviction and
sentence, reserving only the right to appeal a sentence imposed above the
statutory maximum or an upward departure not requested by the Government.
The waiver is valid and enforceable.
      Even if the waiver were not valid and enforceable, Martinez-Flores has not
shown that the district court abused its discretion in denying his motion to
withdraw his guilty plea. Martinez-Flores bore the burden of establishing a fair
and just reason for withdrawing his guilty plea. See United States v. Powell, 354
F.3d 362, 370 (5th Cir. 2003). Although Martinez-Flores admitted that he
knowingly transported money from the sale of illegal drugs in the past, he
argued that did not know that he was actually transporting drugs when he was
arrested. Thus, Martinez-Flores argued that he was actually innocent. Based
on a review of the totality of circumstances and an examination of the factors
enumerated in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), we
find that the district court did not abuse its discretion by denying Martinez-
Flores’s motion to withdraw his plea. See id. Accordingly, the judgment of the
district court is AFFIRMED.




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