     Case: 10-40848 Document: 00511501897 Page: 1 Date Filed: 06/08/2011




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

                                                 FILED
                                                                            June 8, 2011
                                     No. 10-40848
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MANUEL MEDINA LOPEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:10-CR-202-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Manuel Medina Lopez pleaded guilty to attempted illegal reentry following
deportation after conviction of a felony, in violation of 8 U.S.C. 1326(a), (b)(1).
The district court sentenced Medina to 30 months in prison, which was the term
at the bottom of the advisory guidelines range of imprisonment.                    Medina’s
sentence reflected a 16-level increase in his offense level because of his previous
Florida conviction for aggravated assault, which the district court found to be 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40848 Document: 00511501897 Page: 2 Date Filed: 06/08/2011

                                  No. 10-40848

crime of violence. On appeal, Medina argues that the district court erred in
concluding that his aggravated assault conviction constituted a crime of violence.
      The Government urges us to dismiss Medina’s appeal, arguing that the
appeal is barred by the appeal waiver provision in Medina’s written plea
agreement. Pursuant to the plea agreement, Medina waived his right to appeal
the sentence imposed or the manner in which it was determined on any ground
set forth in 18 U.S.C. 3742. Although Medina acknowledges the appeal waiver
provision in his plea agreement, he contends that he reserved his right to
challenge the district court’s characterization of his aggravated assault
conviction.
      We review the validity of an appeal waiver de novo. United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). A defendant may waive his statutory
right to appeal as part of a valid plea agreement if (1) the waiver is knowing and
voluntary, a factor Medina does not challenge, and (2) 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). In determining whether an
appeal waiver applies, we employ normal principles of contract interpretation,
construing waivers narrowly and against the Government. United States v.
Palmer, 456 F.3d 484, 488 (5th Cir. 2006). While “any ambiguity must be
construed in favor of the defendant’s right to appeal,” United States v. Harris,
434 F.3d 767, 770 (5th Cir.2005), we will not read ambiguity into an agreement
in which none readily manifests itself, Bond, 414 F.3d at 545.
      The record reflects that Medina’s plea agreement contains a factual
summary indicating that Medina was deported “after having been convicted of
the aggravated felony of Aggravated Assault.” In response to that statement,
defense counsel included a handwritten notation on the plea agreement that
Medina “reserve[d] the right to dispute the characterization of ‘Aggravated
Felony’ at sentencing.” During Medina’s rearraignment, the magistrate judge
summarized the reservation as follows: “You will reserve your right to dispute

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                                  No. 10-40848

the characterization of this as an aggravated felony at time of sentencing.”
Medina did not object to the magistrate judge’s statement. Medina’s reservation
failed to alter the plain language of the waiver. Instead, it merely clarified that
he intended to challenge at sentencing the characterization of his aggravated
assault conviction as an aggravated felony. See Bond, 414 F.3d at 544-45;
Palmer, 456 F.3d at 488. Because Medina’s appeal is barred by the appeal
waiver, we do not address the merits of Medina’s argument. See United States
v. Sanchez Guerrero, 546 F.3d 328, 335 (5th Cir. 2008).
      AFFIRMED.




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