     Case: 10-50699        Document: 00511676424          Page: 1    Date Filed: 11/28/2011




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

                                                                                FILED
                                                                            November 28, 2011

                                         No. 10-50699                         Lyle W. Cayce
                                       consolidated with                           Clerk
                                         No. 10-50700


UNITED STATES OF AMERICA,

                                                      Plaintiff – Appellee
v.

EDGAR NARVAEZ,

                                                      Defendant – Appellant



                      Appeals from the United States District Court
                            for the Western District of Texas
                          USDC Nos. 5:08-CR-37; 5:09-CR-412


Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT,
District Judge.*
PER CURIAM:**
        Defendant-Appellant Edgar Narvaez appeals his sentences for forgery and
conspiracy to commit healthcare fraud, contending that the district court made
several sentencing errors. Because we conclude that the appellate waiver in
Narvaez’s plea agreement bars this appeal, we DISMISS it.


        *
            District Judge of the Eastern District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50699, consolidated with No. 10-50700

                      I. Facts and Procedural History
      The sentencing-related issues in this appeal arise out of two separate
criminal incidents involving Narvaez. In the first, a jury convicted Narvaez of
forging the signature of a United States bankruptcy judge on a document that
purportedly discharged Narvaez from a then-pending bankruptcy proceeding.
Narvaez used the forged document to purchase a vehicle. Narvaez received a
fifteen-month sentence.
      The second incident concerns Narvaez’s involvement in a fraudulent
Medicaid scheme that included Narvaez, his wife, and a third party. Together,
they formed and operated Narvaez Family Provider Services (“NFPS”). NFPS
eventually obtained a Medicaid provider license and contract by making
fraudulent misrepresentations and material omissions in its application. NFPS
then systematically falsified client records, forged physician certifications, and
billed Medicaid for unauthorized and unprovided services.
      A grand jury later indicted Narvaez on ten counts of healthcare fraud and
two counts of conspiracy to commit healthcare fraud. Narvaez entered a plea
agreement in which he pled guilty to the conspiracy counts. Narvaez also agreed
to forfeit over $400,000 in proceeds obtained through the NFPS scheme.
      Narvaez’s plea agreement includes an appeal waiver. In relevant part, it
provides, in a section titled “Defendant’s Waiver of Right to Appeal or Challenge
Sentence,” that Narvaez “voluntarily and knowingly waive[d] the right to appeal
his sentence on any ground” or “to contest his sentence or the manner in which
it was determined in any post-conviction proceeding.” The plea agreement
carves out two exceptions to this broad waiver: claims based on ineffective
assistance of counsel and claims based on prosecutorial misconduct. Notably,
the plea agreement states that Narvaez waived his appeal rights despite
“knowing that his sentence ha[d] not yet been determined by the [district court].”



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       In this appeal, Narvaez raises three broad issues. He argues that the
district court improperly used the gross total of Medicaid payments to NFPS to
calculate the amount of loss for length-of-sentence and restitution purposes. He
also believes that the district court impermissibly ordered his conspiracy
sentence to run consecutively with his forgery sentence. As he must for the court
to reach these ostensible errors, Narvaez attacks his appeal waiver, contending
that it is invalid because the district court failed to ensure that Narvaez
knowingly and voluntarily waived his right to appeal.
                               II. Standard of Review
       Courts generally review de novo the preclusive effect of an appellate
waiver. See, e.g., United States v. Jacobs, 635 F.3d 778, 780-81 (5th Cir. 2011)
(citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002) (noting that
the issue is a question of law)).1 Just as defendants may waive constitutional
rights, they may also waive statutory rights, such as the right to appeal,
provided that the waiver is “informed and voluntary.”                   United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992). A defendant’s understanding of a
waiver’s plain text is relevant to determining a waiver’s validity, but ultimately
“a defendant’s waiver of [his] right to appeal deserves and, indeed, requires the
special attention of the district court.” United States v. Baty, 980 F.2d 977, 979
(5th Cir. 1992).      Because waiving the right to appeal necessarily entails
accepting an “unknown and unannounced”—and therefore potentially erroneous
or illegal—sentence, the district court must “[e]nsure that the defendant fully
understands [his] right to appeal and the consequences of waiving that right.”
Id. Narvaez concedes that, if valid, the appeal waiver forecloses the substantive
issues he seeks to raise on appeal.



       1
         As we discuss in more detail below, appeal-waiver challenges based on purely
technical errors under Federal Rule of Criminal Procedure 11 may be reviewed for plain error.

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       An unpreserved challenge to the validity of an appeal waiver is reviewed
under different standards depending on the nature of the challenge. As we
explain more fully below, Narvaez’s challenge, while couched as one attacking
the waiver’s validity, is in substance an attack on the court’s conduct of the Rule
11 plea colloquy. See United States v. Cuevas-Andrade, 232 F.3d 440, 446 (5th
Cir. 2000); FED. R. CRIM. P. 11(b)(1)(N) (requiring district courts to “inform the
defendant of, and determine that the defendant understands, . . . the terms of
any plea-agreement provision waiving the right to appeal or to collaterally
attack [his] sentence”).           A defendant’s claim that he unknowingly or
involuntarily waived his right to appeal based solely upon a technical Rule 11
error falls outside of the class of appellate waiver challenges subject to de novo
review. See FED. R. CRIM. P. 11(h) (harmless error) & 52(b) (plain error); United
States v. Vonn, 535 U.S. 55 (2002).
       Deficiencies in the Rule 11 colloquy to which no contemporaneous
objections are lodged are reviewed for plain error in light of the record as a
whole.2 See Vonn, 535 U.S. at 59, 73-76; United States v. Oliver, 630 F.3d 397,
411-12 (5th Cir. 2011), petition for cert. filed, No. 11-5508 (Jun. 24, 2011)
(applying plain-error review to Rule 11(b)(1)(N) challenge and citing Vonn);
United States v. Reyes, 300 F.3d 555, 558-59 (5th Cir. 2002) (analyzing Rule 11
challenge under plain-error review post-Vonn).3                    To show plain error, a


       2
         To the extent our prior cases suggest that Rule 11 defects are reviewed for harmless
error regardless of whether a defendant raised an objection below, see, e.g., Cuevas-Andrade,
232 F.3d at 443 n.2 (citations omitted), we clarify that the subsequent Supreme Court decision
in Vonn directs plain-error review for “silent defendants.” 535 U.S. at 58.
       3
         Our sister circuits, too, have applied Vonn to alleged Rule 11(b)(1)(N) errors. See
United States v. Goodson, 544 F.3d 529, 539-41 (3d Cir. 2008); United States v. Borrero-
Acevedo, 533 F.3d 11, 13-18 (1st Cir. 2008); United States v. Sura, 511 F.3d 654, 660-63 (7th
Cir. 2007); United States v. Murdock, 398 F.3d 491, 495-99 (6th Cir. 2005); United States v.
Arellano-Gallegos, 387 F.3d 794, 796-97 (9th Cir. 2004); United States v. Edgar, 348 F.3d 867,
870-73 (10th Cir. 2003); see also Sotirion v. United States, 617 F.3d 27, 38 (1st Cir. 2010)
(holding that a district court’s erroneous calculation of a guidelines range “is precisely the kind

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defendant must demonstrate that the district court made “(1) . . . an error, (2)
that is clear and obvious, and (3) that affects his substantial rights.” Reyes, 300
F.3d at 558 (citation omitted). Additionally, “because relief on plain-error review
is in the discretion of the reviewing court, a defendant has the further burden
to persuade the court that the error ‘seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings.’” Vonn, 535 U.S. at 63 (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)) (alteration in original). “[A]
defendant’s substantial rights are affected if the district court’s Rule 11 error[]
‘may reasonably be viewed as . . . a material factor affecting [the defendant’s]
decision to plead guilty.’” Cuevas-Andrade, 232 F.3d at 443 (quoting United
States v. Bachynsky, 934 F.2d 1349, 1360 (5th Cir. 1991) (en banc)) (some
alterations and omission in original); cf. United States v. Dominguez Benitez, 542
U.S. 74, 84 (2004) (holding, in the context of “a defendant who seeks reversal of
his conviction after a guilty plea, on the ground that the district court committed
plain error under Rule 11,” that the defendant “must show a reasonable
probability that, but for the error, he would not have entered the plea”).
                                      III. Discussion
       The Government contends that Narvaez knowingly and voluntarily waived
his right to appeal and that the plea colloquy was sufficient, pointing out that
the waiver’s language unambiguously provides notice that, in signing the plea
agreement, Narvaez broadly waived his right to appeal almost any aspect of the
district court’s then-unannounced sentence. Narvaez signed that agreement



of ‘garden variety’ claim of error contemplated by [that defendant’s] appellate waiver” and thus
failed to justify finding that a “miscarriage of justice” or plain error occurred).
        We note that “the plain error standard does not apply when a defendant’s challenge to
the knowing or voluntary nature of a waiver does not involve the district court’s compliance
with the plea colloquy required by [Rule 11].” Goodson, 544 F.3d at 540 n.9. If a defendant
“claims that he was misled or coerced into entering the [plea] agreement, or that he was
incompetent when he signed the waiver, [he] challenges the validity of the waiver itself, not
the Rule 11 colloquy.” Id.

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only hours before his rearraignment. There, the district court noted that
Narvaez had waived his right to appeal, confirmed that Narvaez had conferred
with counsel regarding the Government’s evidence, and gave Narvaez the
opportunity to ask questions.4 Accordingly, the Government argues that the
appellate waiver bars Narvaez from pursuing this appeal.
       Narvaez urges the court to look past the waiver’s express language. He
argues that even clearly written waivers are unenforceable when a district court
takes insufficient steps to apprise a defendant of his waiver’s contents and
consequences. Narvaez also asserts that the district court’s allegedly generic,
passing reference to a nonspecific waiver of “appeal” failed to ensure that he
knowingly and voluntarily waived his right to appeal. What is notable is what
Narvaez does not say: he does not say that he did not understand his plea
agreement. Nor does he contend that he would have done something differently
if the district judge had recited some “magic words.” In sum, he does not claim
that the district court’s limited discussion of the waiver somehow impacted his
decision to enter the plea agreement. Nor does he contend that he involuntarily
waived his appeal rights or did so without understanding the consequences.5
       Narvaez’s attack rests solely upon the district court’s alleged failure to
sufficiently ensure that his waiver was informed and voluntary during the plea



       4
         The Government does not argue that Narvaez’s attendance at his wife’s arraignment
supports a finding of waiver, but that attendance may explain why the experienced district
judge did a relatively shorthand version of the plea colloquy. At the beginning of the plea
hearing, the district judge said: “[Y]ou’ve been here this morning when your wife and the
other people have pled guilty?” Narvaez said he had. “Is that generally what you want to do?
A: Yes, sir.”
       5
        In any case, such an argument would ring hollow. As the district court observed,
Narvaez is highly educated; he holds a mechanical engineering degree from the University of
Texas at Austin. Narvaez also was represented by counsel, whose effectiveness he does not
challenge here, when he signed the plea agreement, as well as during rearraignment and
sentencing. We therefore are not presented with a case involving a defendant of limited
education or deficient representation where the result might be quite different.

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colloquy. Counsel for Narvaez, however, did not “raise[] any contemporaneous
objections to the district court’s [ostensible] failure to comply with Rule 11.”
Cuevas-Andrade, 232 F.3d at 445-46 n.3. We thus review for plain error.
       Examining the record, we conclude that any defects in the Rule 11 plea
colloquy did not affect Narvaez’s substantial rights. While we agree that the
better practice is to ask expressly if the defendant read and understood the plea
agreement,6 here the district court asked several questions that probed
Narvaez’s understanding of the plea agreement’s terms. Among other things,
the district court asked Narvaez to confirm the veracity of the factual allegations
against him, his understanding that he was “giv[ing] up all of those rights of jury
trial, confrontation and cross-examination of witnesses and appeal,” the
voluntariness of his plea, his opportunity to confer with counsel, and the
wrongfulness of his conduct. The district court also apprised Narvaez of the
nature of the charges against him, of the possible range of penalties associated
with those charges—including restitution and the possibility that the district
court might order consecutive sentences, and of the nonbinding effect of the
government’s recommendation that the district court impose a sentence on the
low end of the applicable sentencing range. Taken together, the questions asked
and information provided are sufficient for us to conclude that Narvaez has not
shown that his substantial rights were violated. See FED. R. CRIM. P. 11(b).
“Although the [district] court did not mechanically ask [Narvaez] whether he
had read the plea agreement and understood its terms, the essence of that



       6
         We echo the Cuevas-Andrade court’s reminder that district courts “be vigilant in
performing their duties under Rule 11” and “‘follow the script’ to assure that the plea is
voluntary and that the defendant’s substantial rights have been safeguarded. Strict
compliance with Rule 11 also conserves judicial resources by precluding appeals such as this
one, where the technical violations do not materially affect the defendant’s decision to plead
guilty.” 232 F.3d at 445-46 n.3. This reminder extends to counsel, who as officers of the court
have a duty to assist the court in carrying out its Rule 11 obligations. Id.

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inquiry was made.” United States v. Stanson, No. 10-50652, 2011 WL 3822013,
at *2 (5th Cir. Aug. 30, 2011) (unpublished).7
       Critically for our purposes here, the record as a whole demonstrates that
Narvaez read and understood his plea agreement and that he failed to raise any
questions concerning the appellate waiver. See Vonn, 535 U.S. at 59; United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005) (citing United States v.
Portillo, 18 F.3d 290, 293 (5th Cir. 1994)). At most, then, Narvaez complains of
a technical Rule 11 deficiency that did not affect his substantial rights. As such,
he fails to show plain error. Accordingly, we hold Narvaez to his bargain and
conclude that he waived his right to bring this appeal.8
                                      IV. Conclusion
       APPEAL DISMISSED.9



       7
         Although Stanson is unpublished, it represents a reasoned analysis of a similar
factual pattern, so we find it persuasive on this point.
       8
         This holding extends to Narvaez’s restitution objections. The plea agreement listed
restitution as one of the potential penalties that the district court could impose as part of
Narvaez’s sentence, and the district court specifically mentioned that possibility—as well as
its discretion to later set the amount of restitution—at the Rule 11 hearing. Narvaez
nonetheless waived his right to challenge his sentence “on any ground,” and we have long held
that “[r]estitution is a criminal penalty and a component of the defendant’s sentence.” United
States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994). This case therefore does not implicate the
potential restitution-order exception to general appellate waivers suggested by United States
v. Smith, 528 F.3d 423, 424 (5th Cir. 2008) (“declin[ing] to address the issue,” previously raised
in a series of unpublished opinions, “of whether a general appeal waiver bars review of a
restitution order when the plea agreement does not discuss restitution”).
       9
        Narvaez contends in a footnote, for issue-preservation purposes, that appeal waivers
made without knowledge of the rights being sacrificed are neither knowing nor voluntary. We
decide above that Narvaez’s waiver was knowing and voluntary and that, accordingly, he
understood that by entering the plea agreement he waived his right to bring this appeal. In
any case, we have consistently rejected Narvaez’s broad, general objection to the use of appeal
waivers. See, e.g., Melancon, 972 F.2d at 568 (holding that “a defendant may, as part of a valid
plea agreement, waive his statutory right to appeal his sentence”); see also United States v.
Burns, 433 F.3d 442, 446-47, 450-51 (5th Cir. 2005) (upholding an appellate waiver over
defendant’s objection that he could not waive a right that did not exist at the time he entered
the waiver). Thus, we agree that such a generic attack is foreclosed in our circuit.

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