     Case: 10-40351 Document: 00511298255 Page: 1 Date Filed: 11/18/2010




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

                                                 FILED
                                                                         November 18, 2010
                                     No. 10-40351
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SOTERO SOTELO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:09-CR-61-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Sotero Sotelo pleaded guilty pursuant to a written plea agreement to
conspiracy to smuggle items from the United States and exportation of
semiautomatic rifles. On appeal, Sotelo seeks to raise substantive challenges to
the district court’s decision to upwardly depart from the applicable guidelines
range and impose an 87-month sentence on the firearm-exportation charge. The
Government argues that Sotelo’s appeal is barred by the appeal waiver in his
plea agreement. Sotelo contends that the appeal waiver is not enforceable

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 10-40351

because the Government breached the plea agreement by requesting the
departure and because the district court told him at sentencing that he could
appeal. Because the Government must invoke the waiver provision for it to
apply, Sotelo’s response in his reply to the Government’s invocation may be
considered by this court. See United States v. Ramirez, 557 F.3d 200, 203 (5th
Cir. 2009); United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
      A defendant may waive his right to appeal as part of a valid plea
agreement if the waiver is knowing and voluntary. United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). To determine whether an appeal of a sentence
is barred by an appeal waiver provision in a plea agreement, we conduct a two-
step inquiry: (1) whether the waiver was knowing and voluntary and (2) whether
the waiver applies to the circumstances at hand, based on the plain language of
the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). We
review the validity of an appeal waiver de novo. United States v. Burns, 433
F.3d 442, 445 (5th Cir. 2005).
      At rearraignment, Sotelo stated under oath that he had reviewed the plea
agreement with counsel and had signed it. The district court explained to Sotelo
that by entering the guilty plea, he had given up his right to appeal or
collaterally attack his sentence. Sotelo averred that he understood the appeal
waiver.
      Contrary to Sotelo’s assertion, the Government did not breach the plea
agreement. The Government was obligated to request full credit for acceptance
of responsibility and dismissal of the outstanding charges in the indictment,
which it did. The agreement did not bind the parties to a particular sentencing
range or recommendation. Cf. United States v. Munoz, 408 F.3d 222, 225-27 (5th
Cir. 2005) (finding a breach of the plea agreement when the Government agreed
that a particular guidelines range should apply, then at sentencing supported
the probation officer’s alternative guidelines calculations). Moreover, the fact
that the court told Sotelo at sentencing that he had a right to appeal does not

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                                 No. 10-40351

affect the validity of the waiver. See United States v. Gonzalez, 259 F.3d 355,
358 (5th Cir. 2001).
      Sotelo also asserts that the concurrent 87-month sentence he received for
the conspiracy charge exceeds the statutory maximum term of imprisonment of
five years. See 18 U.S.C. § 371. Although this argument constitutes a challenge
to sentencing that is arguably barred by the waiver provision, the Government
has failed to invoke the waiver as to this claim, and we may thus review it. See
Story, 439 F.3d at 231. Although Sotelo has raised his argument for the first
time on appeal, “because a sentence which exceeds the statutory maximum is an
illegal sentence and therefore constitutes plain error, we review this issue de
novo.” United States v. Thomas, 600 F.3d 387, 388 (5th Cir. 2010) (internal
quotation marks and citation omitted).
      Sotelo’s 87-month sentence exceeds the statutory maximum of 60 months
for the conspiracy offense. Accordingly, we MODIFY Sotelo’s sentence for the
conspiracy charge to 60 months in prison. See United States v. De Jesus-Batres,
410 F.3d 154, 164 (5th Cir. 2005). The modification does not affect the overall
term of imprisonment because Sotelo’s concurrent sentence for his exportation
charge exceeds the modified sentence.      See id. Sotelo’s sentences are thus
AFFIRMED as modified.




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