                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 6, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40516


                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                              versus

                           NOEL EXINIA,

                       Defendant-Appellant.

                        --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                       USDC No. 1:05-CR-83-1
                        --------------------

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:1

     Noel Exinia appeals his conviction for conspiracy to possess

with intent to distribute more than 100 pounds of marijuana and

more than 5 kilograms of cocaine. He alleges that the trial court

erred by: granting his request for self-representation on the

morning of the trial, accepting a plea of guilty while Exinia was

supported only by standby counsel, denying a motion for continuance

to obtain counsel, denying a motion to withdraw the guilty plea,

and overruling certain objections to the presentence report. He

also argues, for the first time in his reply brief, that the trial

     1
        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that this opinion should not be published and is not precedent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.
                                No. 06-40516
                                     -2-
court erred by requiring him to wear a stun belt. As a preliminary

matter, Exinia admits that he must overcome a provision of his plea

agreement waiving his right to appeal. Because this waiver was

effective, we dismiss the appeal.

     Exinia   contends   that    the    waiver    of   his   right     to   appeal

pursuant to his plea agreement was ineffective for two reasons:

first, because the judge did not correct an ambiguous explanation

of his right to appeal an illegal sentence; and second, because he

did not receive consideration in exchange for his agreement to

plead guilty.

     In support of his argument that there is an ambiguity, Exinia

points   to   an   exchange   between    his     standby     counsel    and   the

prosecutor discussing Exinia’s rights under the plea agreement. In

clarifying the agreement, Exinia’s standby counsel asked the court:

“Judge, I would assume that would include the usual caveat that he

would still be able to appeal any unlawful sentence imposed by the

court. Is that right, Mr. Lewis?” Lewis, the prosecutor, responded:

“Any unlawful or illegal sentence above the statutory maximum.” The

court added: “You have a right to appeal that, but that would be

your only right to appeal.” We find no ambiguity. The standby

counsel asked the prosecutor whether Exinia could appeal an illegal

sentence, and the prosecutor clarified that he could appeal an

illegal sentence above the statutory maximum. Moreover, none of

Exinia’s substantive arguments on appeal contend that there has
                                No. 06-40516
                                     -3-
been an illegal sentence.2 The remedy for an ambiguity respecting

the defendant’s right to appeal is to construe that ambiguity in

favor of the defendant, United States v. Harris, 434 F.3d 767, 770

(5th Cir. 2005), and doing so would not allow Exinia to pursue the

issues appealed in this case.

      Exinia also contends that the plea bargain was a contract,

made unenforceable by a lack of consideration in exchange for the

plea. General principles of contract law are often applied to

criminal plea agreements. See United States v. Ready, 82 F.3d 551,

558-59 (2d Cir. 1996). We have considered similar issues raised in

the past,    but   have   not   expressly   held     that   consideration     is

required to support a valid plea bargain. See United States v.

Smallwood, 920 F.2d 1231, 1239 (5th Cir. 1991); Smith v. Estelle,

562   F.2d   1006,   1008   (5th    Cir.    1977).     Even      assuming   that

consideration is required, however, Exinia fails to show that it

was illusory. The government here agreed to move for dismissal of

one   of   the   counts   pending   against    Exinia,      to    refrain   from

prosecuting Exinia for other crimes known to the government and

committed between 2003 and 2005, and to recommend a reduction in

his sentence for acceptance of responsibility should he qualify.

      Exinia argues that the dismissal of the other pending count

did not, as a practical matter, affect his sentence. However, we

      2
       “An illegal sentence is one not authorized or directed by
law. Stated otherwise, an illegal sentence is one which exceeds
statutory limits, imposes multiple terms of imprisonment for the
same offense, fails to conform to the oral pronouncement of
sentence, is ambiguous, or otherwise violates the constitution or
the law.” 21A AM. JUR. 2D Criminal Law § 823 (2007).
                                     No. 06-40516
                                          -4-
specifically         rejected     this        argument        in       Smith,       noting       that

defendants       receive    other     benefits          from       a    dismissal,         such    as

improving the defendant’s chances of parole. 562 F.2d at 1008.

Exinia has not disputed that he was not prosecuted for other crimes

committed between 2003 and 2005, as the plea agreement required.

The government argues that numerous other crimes are known to it

from this period, during which Exinia was involved in a drug

trafficking and money laundering operation. While the government

ultimately        objected      to        a     reduction              for     acceptance          of

responsibility, arguing that Exinia refused to meet with the

probation department to discuss the case and contradicted his

admissions at re-arraignment, the conditional promise to recommend

a reduction in sentence constitutes consideration under general

contract principles. See United States v. Brunetti, 376 F.3d 93,

95-96      (2d   Cir.   2004)   (“Faced         with     a    mandatory            term    of    life

imprisonment, Brunetti decided to trade a guilty plea for a chance

at    a    reduced    sentence.      An       element    of    risk          was    part    of    his

bargain.”).

          Because Exinia’s plea agreement waiving the right to appeal

was       knowing,      voluntary,        and     enforceable,                any    appeal        in

contravention of the waiver provision should be dismissed. United

States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002). We therefore

DISMISS THE APPEAL.
