     Case: 15-50181      Document: 00513842744         Page: 1    Date Filed: 01/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-50181                                  FILED
                                  Summary Calendar                         January 20, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS EDUARDO CASTRO-DELGADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:14-CR-642-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Luis Eduardo Castro-Delgado was subject to a term of supervised release
when he pleaded guilty, pursuant to an agreement, to one count of transporting
an illegal alien for the purpose of commercial advantage and private financial
gain, and aiding and abetting.              He was sentenced to 36 months of
imprisonment on the new conviction, to be followed by five years of supervision.
Additionally, Castro-Delgado’s supervised release was revoked, and he was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50181    Document: 00513842744    Page: 2   Date Filed: 01/20/2017


                                No. 15-50181

ordered to serve an eight-month term of imprisonment on the revocation, to
run consecutively to the 36-month sentence.
      Castro-Delgado now appeals from the sentence imposed on his conviction
of transporting an illegal alien. He claims that (1) the district court plainly
erred in imposing a five-year term of supervised release, as such term exceeds
the statutory maximum, (2) the district court plainly erred in imposing any
term of supervised release because he is a deportable alien, and (3) the
imposition of consecutive sentences of imprisonment was procedurally and
substantively unreasonable.    The Government concedes that the district
court’s imposition of a five-year term of supervised release was erroneous.
However, the Government contends that Castro-Delgado’s remaining claims
are barred by the appeal waiver provision of the plea agreement. As discussed
below, we dismiss the appeal in part, vacate the sentence in part, and remand
for resentencing.
      A defendant may waive his appellate rights pursuant to a valid plea
agreement if the waiver is knowing and voluntary. United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999). If the waiver is knowing and voluntary, we
review whether the terms of the waiver apply to the circumstances at hand.
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).       The waiver is
enforceable to the extent that the Government seeks to invoke it. United States
v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). We review the validity of an
appeal waiver de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir.
2005).
      After reviewing the record, we are satisfied that Castro-Delgado’s appeal
waiver was knowing and voluntary; he was aware that he had a right to appeal
and that he was waiving that right subject to the terms of the appeal waiver
provision. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005);



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                                 No. 15-50181

FED. R. CRIM. P. 11(b)(1)(N). Castro-Delgado’s broad waiver of the right to
appeal his sentence bars his challenge to the imposition of a term of supervised
release, as well as his challenge to the imposition of consecutive sentences of
imprisonment. See Bond, 414 F.3d at 544. Accordingly, Castro-Delgado’s
appeal is DISMISSED as to these claims. See United States v. Walters, 732
F.3d 489, 491 (5th Cir. 2013).
      The government has not, however, chosen to enforce the appellate waiver
on the claim that the form of supervised release exceeds the statutory
maximum, and it is questionable the waiver could preclude review of this issue.
See United States v. Hollins, 97 F. App’x 477, 479 (5th Cir. 2004). We will
correct an overlong term of supervised release on plain error review. United
States v. Cooper, 274 F.3d 230, 244 (5th Cir. 2001). Here, the statute of
conviction, 8 U.S.C. § 1324(a)(1)(A)(ii), carries a maximum sentence of 10 years
of imprisonment. See § 1324(a)(1)(B)(i). It is therefore a Class C felony. See
18 U.S.C. § 3559(a)(3). For a Class C felony, a term of supervised release of
not more than three years is permitted. See 18 U.S.C. § 3583(b)(2). Thus, as
the Government concedes, the five-year term of supervised release imposed by
the district court exceeds the statutory maximum, and it should be corrected
despite Castro-Delgado’s failure to raise the issue in the district court. See
Cooper, 274 F.3d at 244. Accordingly, we vacate the sentence in part and
remand for resentencing.
      APPEAL DISMISSED IN PART; SENTENCE VACATED IN PART;
REMANDED.




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