     Case: 12-41313       Document: 00512424849         Page: 1     Date Filed: 10/30/2013




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

                                                                            FILED
                                                                         October 30, 2013
                                     No. 12-41313
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ISMAEL GALLEGOS MOLINA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-6-38


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       In accordance with a written agreement, Ismael Gallegos Molina pleaded
guilty to one charge of conspiring to distribute and to possess with intent to
distribute cocaine and methamphetamine. The district court imposed a within-
guidelines sentence of 108 months in prison and a two-year term of supervised
release. As part of the agreement, Gallegos Molina broadly waived his right to
appeal his conviction and sentence, reserving only the right to appeal any
punishment imposed in excess of the statutory maximum and the right to appeal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-41313     Document: 00512424849     Page: 2   Date Filed: 10/30/2013

                                  No. 12-41313

based on a claim of ineffective assistance of counsel that affects the validity of
the waiver or the plea itself. In this appeal, he argues that the waiver should
not be enforced because it was not knowing and voluntary. He also contends
that he was sentenced in contravention of Apprendi v. New Jersey, 530 U.S. 466
(2000), and that the district court erred by not crediting him for time spent in
custody prior to sentencing. The Government argues that the appeal is barred
by the appeal waiver provision of the plea agreement.
      A defendant may waive his right to appeal if the waiver is made knowingly
and voluntarily. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
A defendant’s waiver is knowing and voluntary if he indicates that he has read
and understood the plea agreement, which contains an “explicit, unambiguous
waiver of appeal.” McKinney, 406 F.3d at 746. Additionally, courts conducting
rearraignment hearings must ascertain that defendants understand provisions
in plea agreements waiving the right to appeal. FED.R.CRIM.P. 11(b)(1)(N).
      The record reflects that the magistrate judge explained the appeal waiver
provision to Gallegos Molina at rearraignment. Gallegos Molina indicated that
he had read the plea agreement and that he understood the waiver of appellate
rights. Consequently, Gallegos Molina’s appeal is barred by his waiver of his
appellate rights. See McKinney, 406 F.3d at 746.
      The judgment of the district court is AFFIRMED.




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