                REVISED MARCH 16, 2011
       IN THE UNITED STATES COURT OF APPEALS
                                       United States Court of Appeals
                FOR THE FIFTH CIRCUIT           Fifth Circuit

                                                                FILED
                                                               March 15, 2011
                                No. 10-20043
                                                               Lyle W. Cayce
                                                                    Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

MARCUS EUGENE JACOBS,

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas



Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges:
PER CURIAM:
     Federal prisoner Marcus Eugene Jacobs pled guilty to one count of
possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea
agreement, Jacobs generally waived his right to appeal his sentence but
preserved his right to appeal an upward departure from the Sentencing
Guidelines not requested by the Government. At sentencing, the district court
imposed an upward variance from the Guidelines not requested by the
Government. Jacobs now contends that the upward-departure exception to the
waiver allows him to challenge his sentence on appeal. Because sentencing
                                       No. 10-20043

departures are distinct from sentencing variances, we conclude that the waiver
bars this appeal and grant the Government’s motion to dismiss.
                                              I.
       Jacobs pled guilty to one count of possessing stolen mail in violation of 18
U.S.C. § 1708. In exchange for several concessions from the Government, Jacobs
agreed to waive his right to appeal his sentence. In pertinent part, the waiver
of appeal provides:
       The defendant waives the right to appeal the sentence imposed or
       the manner in which it was determined. The defendant may appeal
       only (a) the sentence imposed above the statutory maximum; or (b)
       an upward departure from the Sentencing Guidelines, which had
       not been requested by the United States as set forth in Title 18
       U.S.C. § 3642(b).
At the Rule 11 hearing, the district court specifically discussed the waiver-of-
appeal provision with Jacobs. The court accurately explained that Jacobs was
waiving his right to appeal anything about his sentence unless one of the two
exceptions applied. The court also explained that Jacobs’s sentence had not yet
been determined, that the court was not bound by the Government’s sentencing
recommendation, and that Jacobs would not be able to change his plea even if
the court imposed a longer sentence than Jacobs anticipated. Jacobs stated on
the record that he had read and understood the terms of his plea agreement,
that he wished to give up the rights he was waiving, and that no one had forced
or threatened him to plead guilty.
       At sentencing, the district court calculated the advisory Guidelines
sentencing range as four to ten months. The Government recommended a
sentence of seven months. However, the district court opted to vary upwardly
under 18 U.S.C. § 3553(a).1 Citing Jacobs’s extensive criminal history, the


       1
        The district court described its decision as an “upward departure,” but it cited to 18
U.S.C. § 3553(a)(1) in doing so and later clarified in the Statement of Reasons that it was
imposing a sentence outside the advisory sentencing-guidelines system, not departing from the
advisory guideline range for reasons authorized by the guidelines themselves.

                                              2
                                         No. 10-20043

failure of prior sentences to deter Jacobs from further criminal conduct, a high
risk of recidivism, and the need to protect the public, the district court sentenced
Jacobs to thirty-six months in prison. On appeal, Jacobs seeks to challenge the
reasonableness of a sentence that is 260 percent longer than the high end of the
Guidelines range.


                                                II.
       We determine de novo whether the waiver-of-appeal provision in Jacobs’s
plea agreement bars this appeal.2 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.”3
       For a waiver of appeal to be knowing and voluntary, “[a] defendant must
know that he had a ‘right to appeal his sentence and that he was giving up that
right.’”4 The defendant also must understand the consequences of the waiver.5
The defendant’s waiver is unknowing and involuntary where the district court
explains the terms of the appellate waiver incorrectly6 or not at all.7 If the
district court accurately explains the terms and consequences of the waiver of



       2
           See, e.g., United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).
       3
           United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006).
       4
       United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992)).
       5
          United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992) (“A defendant’s waiver of her
right to appeal is not informed if the defendant does not know the possible consequences of her
decision.”).
       6
        See, e.g., United States v. Delgado-Ramirez, 236 F. App’x 983, 984 (5th Cir. 2007) (per
curiam) (unpublished).
       7
         FED. R. CRIM. P. 11(b)(1)(N); see, e.g., United States v. Robinson, 187 F.3d 516, 518 (5th
Cir. 1999) (“[A] defendant’s waiver of her right to appeal deserves and, indeed, requires the
special attention of the district court.’” (quoting Baty, 980 F.2d at 979)).

                                                3
                                         No. 10-20043

appeal and the defendant states on the record that he understands them, the
defendant’s later contention that he did not really understand will not invalidate
the waiver.8 Here, Jacobs concedes that he signed the waiver knowingly and
voluntarily, and the record of the Rule 11 hearing indicates this concession was
a wise one.
       To determine whether a waiver of appeal applies to the circumstances at
hand, we ascertain the ordinary meaning of the waiver provision.9 We do so
using “normal principles of contract interpretation,”10 subject to the limitation
that “[g]iven the significance of the rights they involve, we construe appeal
waivers narrowly, and against the government.”11 While “any ambiguity must
be construed in favor of the defendant’s right to appeal,”12 we will not read
ambiguity into an agreement in which none readily manifests itself: “In 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.”13
       Here, the relevant portion of the waiver-of-appeal provision in Jacobs’s
plea agreement only allows him to appeal an “upward departure” not requested
by the Government. “‘Departure’ is a term of art under the Guidelines and
refers only to non-Guidelines sentences imposed under the framework set out in



       8
        See, e.g., United States v. Smith, No. 09-50343, 2010 WL 5185499, at *2 (5th Cir. Dec.
15, 2010) (per curiam) (unpublished); United States v. De Cay, 359 F. App’x 514, 515–16 (5th
Cir. 2010) (per curiam) (unpublished).
       9
         See, e.g., United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (per curiam) (“The
language in the appellate waiver must be afforded its plain meaning in accord with the intent
of the parties at the time the plea agreement was executed.”).
       10
          United States v McKinney, 406 F.3d 744, 746 (5th Cir. 2005); see also United States
v. Bond, 414 F.3d 542, 545 (5th Cir. 2005) (“We must interpret the plea agreement like a
contract, in accord with what the parties intended.”).
       11
            Palmer, 456 F.3d at 488.
       12
            United States v. Harris, 434 F.3d 767, 770 (5th Cir. 2005).
       13
            Bond, 414 F.3d at 545.

                                                4
                                         No. 10-20043

the Guidelines.”14         The Guidelines set out a three-part framework for the
imposition of sentences: the district court (1) calculates the advisory sentencing
range; (2) considers the specific offender characteristics and grounds for
departure enumerated in the Guidelines; and (3) weighs the applicable factors
in 18 U.S.C. § 3553(a) as a whole.15 The district court’s authority to impose a
departure emanates from 18 U.S.C. § 3553(b)(1) and, in turn, in Chapter 5,
Part K of the Guidelines.16 Under Federal Rule of Criminal Procedure 32(h), the
district court cannot impose a departure unless it first notifies the parties that
it is contemplating doing so.17 When the district court imposes an upward
departure, it must explain its reasons for doing so in Section V of the standard-
form Statement of Reasons.
       By contrast, if after completing the Guidelines’ three-step process the
district court “imposes a sentence that is outside the guidelines framework, such
a sentence is considered a ‘variance’.”18 The district court’s authority to impose
a variance is discretionary and stems from 18 U.S.C. § 3553(a).19 Rule 32(h)’s




       14
            Irizarry v. United States, 553 U.S. 708, 714 (2008).
       15
            See U.S. SENTENCING GUIDELINES MANUAL § 1B1.1(a)–(c) (2010).
       16
            See id. § 5K2.0(a).
       17
          Irizarry, 553 U.S. at 709–10 (“[B]efore the court may depart from the applicable
sentencing range on a ground not identified for departure either in the presentence report or
in a party’s prehearing submission, the court must give the parties reasonable notice that it
is contemplating such a departure.” (quoting FED. R. CRIM P. 32(h))).
       18
            U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. background (2010).
       19
            See, e.g., United States v. Herrera-Garduno, 519 F.3d 526, 530–31 (5th Cir. 2008).

                                                5
                                        No. 10-20043

notice requirement does not apply to variances.20 And the district court explains
its reasons for imposing a variance in Section VI of the Statement of Reasons.
       In short, an upward departure and an upward variance are not one and
the same. The plea agreement applies only to “departures,” and the term
“departure” has an ordinary, well-settled meaning in the sentencing context.
That meaning does not extend to variances such as the one the district court
imposed here.       Jacobs does not argue that the parties intended the term
“departure” to carry an atypical or specialized meaning when they included it in
his plea agreement. The rule that we construe plea agreements narrowly and
against the Government does not authorize us to ignore the settled meanings of
the terms used in such agreements.21
       Jacobs contends that the upward-departure exception applies here because
it allows him to appeal “upward departures from the Guidelines,” which he says
actually describes variances, while departures are best described as “upward
departures under the Guidelines.” This distinction is simply not supported by
the controlling statutes and precedent.22 In addition, Jacobs’s reading would



       20
          Irizarry, 553 U.S. at 716; United States v. Mejia-Huerta, 480 F.3d 713, 722–23 (5th
Cir. 2007). See generally United States v. Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006)
(“Booker contemplates that the district court will impose a discretionary sentence after
consideration of the advisory Guidelines, the grounds raised by counsel, the defendant’s
allocution, victim statements, other evidence, and the factors set forth in § 3553(a). Booker
does not contemplate that the court will somehow arrive at its sentence prior to sentencing,
and requiring advance notice of ‘any ground’ beyond the factors set forth in § 3553(a) would
undoubtedly prove to be unworkable.” (footnote and internal citation omitted)).
       21
           Cf. United States v. Guinyard, 149 F. App’x 279, 281 (5th Cir. 2005) (per curiam)
(unpublished) (holding that a waiver-of-appeal provision that contained the same two
exceptions as Jacobs’s did not authorize the defendant to appeal the fact that his sentence was
imposed under the pre-Booker mandatory Guidelines regime); United States v. Escobar, 78 F.
App’x 935, 937 (5th Cir. 2003) (unpublished) (holding that a waiver-of-appeal provision that
contained the same two exceptions as Jacobs’s did not authorize the defendant to appeal the
district court’s decision to apply a six-level sentence enhancement).
       22
         In fact, Jacobs’s position most closely mirrors the position advocated by the dissenting
Justices—and rejected by the majority—in Irizarry. See 553 U.S. at 718 (Breyer, J.,
dissenting).

                                               6
                                         No. 10-20043

have the absurd consequence of allowing him to appeal variances—since they
are departures “from” the Guidelines—but not departures, since the plea
agreement does not contain a provision allowing appeals from departures
“under” the Guidelines. We find it wholly implausibly that the parties intended
this outcome when they chose to use the term “departure” in the waiver
provision.
       If the parties had intended to allow Jacobs to appeal any sentence that
exceeded the high end of the Guidelines’ recommended sentencing range, they
could have drafted the waiver of appeal to say so.23 Jacobs might now wish that
the plea agreement were worded differently, but “an agreement should be
enforced as written, without regard to whether the parties contracted wisely.”24
We hold that the upward-departure exception to Jacobs’s waiver of appeal did
not authorize him to appeal the upward variance he received at sentencing.25




       23
           See United States v. Jackson, 523 F.3d 234, 242 n.5 (3d Cir. 2008) (“Waivers
frequently contain provisions allowing a defendant to appeal if . . . there is an erroneous
upward departure, an unreasonable upward variance, or the sentence unreasonably exceeds
the advisory Guidelines range . . . .”); see also, e.g., United States v. Mateo, No. 10-11165, 2011
WL 411438, at *1 (11th Cir. Feb. 9, 2011) (per curiam) (unpublished) (“The plea agreement
contained a sentence appeal waiver that waived Mateo’s right to appeal his sentence unless
the sentence . . . is the result of an upward departure and/or a variance from the guideline
range that the Court establishes at sentencing.” (internal quotation marks omitted)); United
States v. Shawaka, No. 09-4580, 2011 WL 288524, at *4 (4th Cir. Jan. 31, 2011) (per curiam)
(unpublished); United States v. McCarty, 612 F.3d 1020, 1024 (8th Cir.), cert. denied, 131 S.
Ct. 673 (2010); United States v. Ali, 384 F. App’x 165, 167 (3d Cir. 2010) (unpublished).
       24
         Xtria LLC v. Tracking Systems, Inc., 345 F. App’x 940, 944 (5th Cir. 2009)
(unpublished) (citation, internal quotation marks, and brackets omitted).
       25
          The Eleventh Circuit has interpreted a waiver of appeal allowing an appeal from an
upward departure to also allow an appeal from an upward variance. See United States v.
Manuel, 208 F. App’x 713, 716 n.1 (11th Cir. 2006) (per curiam) (unpublished). However, its
decision rested on its determination that the defendant’s waiver was not knowing and
voluntary. Id. This Circuit’s precedent on when a waiver of appeal is knowing and voluntary
forecloses a similar determination in this case. See supra notes 4–8 and accompanying text.
Moreover, Manuel was decided almost two years before the Supreme Court’s decision in
Irizarry, which solidified the distinction between a variance and a departure. In light of that
intervening precedent, we find the reasoning of Manuel inapplicable.

                                                7
                                No. 10-20043

                                     III.
      For the reasons discussed above, IT IS ORDERED that the appellee’s
opposed motion to dismiss this appeal is GRANTED.           IT IS FURTHER
ORDERED that the appellee’s alternative motion to extend time to file its brief
is DENIED AS MOOT.




                                      8
