     Case: 15-60118      Document: 00513344504         Page: 1    Date Filed: 01/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 15-60118                                     FILED
                                  Summary Calendar                            January 15, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR RUIZ RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:13-CR-62


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Hector Ruiz Rodriguez appeals his guilty-plea conviction of conspiracy to
possess with intent to distribute more than 100 kilograms of marijuana and
the resulting sentence of 192 months of imprisonment. In Rodriguez’s plea
agreement, he waived the right to file a direct appeal challenging his conviction
and sentence “on any ground whatsoever,” with the exception of the right to




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60118    Document: 00513344504    Page: 2   Date Filed: 01/15/2016


                                No. 15-60118

pursue claims of ineffective assistance of counsel. He also waived the right to
contest his conviction and sentence in any post-conviction proceeding.
      Despite the appeal waiver, Rodriguez argues (1) that the district court
lacked jurisdiction to impose a sentence outside the statutory maximum
sentence authorized by his guilty plea, (2) the quantity of marijuana
attributable to him required a jury finding, and (3) the factual basis is
insufficient to establish drug quantity. The Government seeks to enforce the
appeal waiver and has filed a motion for dismissal of the appeal or,
alternatively, summary affirmance.
      To determine whether an appeal of a sentence is barred by an appeal
waiver provision in a plea agreement, this court analyzes whether the waiver
was knowing and voluntary and whether the waiver applies to the
circumstances at hand, based on the plain language of the agreement. See
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). For an appeal waiver
to be knowing and voluntary, the defendant must know that he had a right to
appeal and that he was giving up that right. See United States v. Portillo,
1 F.3d 290, 292 (5th Cir. 1994). This court reviews the validity of an appeal
waiver de novo. See United States v. Baymon, 312 F.3d 725, 727 (5th Cir.
2002).
      Rodriguez pleaded guilty to an offense involving more than 100
kilograms of marijuana, which subjected him to a statutory minimum term of
imprisonment of 5 years and a maximum term of 40 years. See 21 U.S.C.
§ 841(b)(1)(b). His sentence of 192 months of imprisonment is within the
statutory range. The record, including the superseding indictment, written
plea agreement, plea supplement, and plea colloquy conducted by the district
court, indicates that Rodriguez’s guilty plea and appeal waiver were entered




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                                 No. 15-60118

into knowingly and voluntarily. Thus, the appeal waiver is enforceable. See
Bond, 414 F.3d at 544; Portillo, 1 F.3d at 292.
      While Rodriguez phrases his argument concerning the statutory
maximum as a jurisdictional challenge, the argument is merely a challenge to
the district court’s imposition of a sentence within the statutorily authorized
sentencing range. As such, this issue is barred by the terms of the appeal
waiver. See Bond, 414 U.S. at 544. Additionally, Rodriguez’s argument that
the quantity of marijuana attributable to him required jury findings disregards
the explicit terms of his plea agreement and superseding indictment. This
issue is also barred by the terms of his appeal waiver. See id.
      Rodriguez’s challenge to the sufficiency of the Government’s factual basis
on the issue of drug quantity is not barred by the appeal waiver. See United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). Nonetheless, although
Rodriguez raises the issue, he makes no effort to address the considerable facts
regarding drug quantity set forth in the Government’s proffer. Accordingly, he
has abandoned any such argument. See United States v. Scroggins, 599 F.3d
433, 446-47 (5th Cir. 2010). Additionally, based upon counsel’s comments
during the plea colloquy, Rodriguez waived any challenge to the sufficiency of
the factual basis. See United States v. Olano, 507 U.S. 725, 733 (1993); United
States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). This issue is therefore
affirmatively waived and is entirely unreviewable. See Arviso-Mata, 442 F.3d
at 384.
      While an enforceable appeal waiver does not deprive this court of
jurisdiction, dismissal of the appeal is appropriate as a means of enforcing the
Government’s contractual rights under the plea agreement. See United States
v. Story, 439 F.3d 226, 230-31 & n.5 (5th Cir. 2006).           Accordingly, the
Government’s motion to dismiss is GRANTED, in part, with respect to



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                                No. 15-60118

Rodriguez’s issues (1) and (2), as these issues are barred by the terms of the
appeal waiver. The district court’s judgment is AFFIRMED, in part, with
respect to issue (3), as Rodriguez has abandoned the issue by failing to
adequately brief it and the record indicates that the issue is waived. The
Government’s motion for summary affirmance is DENIED, as the issues
presented in this appeal are fact sensitive and are not foreclosed by circuit
precedent.
     MOTION TO DISMISS GRANTED, IN PART; APPEAL AFFIRMED IN
PART; MOTION FOR SUMMARY AFFIRMANCE DENIED.




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