     Case: 13-40842      Document: 00512657865         Page: 1    Date Filed: 06/10/2014




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

                                    No. 13-40842                                 FILED
                                  Summary Calendar                           June 10, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ALEJANDRO GARZA, II,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:12-CR-1096-3


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Jose Alejandro Garza, II, appeals his sentence following his guilty plea
conviction on one count of harboring an illegal alien for commercial advantage
or private financial gain.         In accordance with his plea agreement, the
remaining six counts against him were dismissed, including one count of
hostage taking and one count of conspiracy to hostage take.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40842    Document: 00512657865       Page: 2   Date Filed: 06/10/2014


                                 No. 13-40842

      Garza challenges the district court’s assessment of the enhancements
under U.S.S.G. § 2L1.1(b)(5)(B) and (b)(8)(A).          He argues that those
enhancements were applied unconstitutionally under Apprendi v. New Jersey,
530 U.S. 466 (2000), and its progeny because the enhancements increased his
statutory maximum sentence and were based on facts that were not admitted
by him or found by a jury beyond a reasonable doubt.
      As part of his plea agreement, Garza agreed to waive his “right to appeal
the conviction, the sentence imposed, or the manner in which the sentence was
determined.” The Government contends that Garza’s argument is barred by
his appeal waiver. Garza argues that the appeal waiver is invalid because the
Government breached the plea agreement and thereby rendered his appeal
waiver involuntary and unknowing.           Specifically, Garza asserts that the
enhancements under § 2L1.1(b)(5)(B) and (b)(8)(A) and his charges concerning
hostage taking were based on the same conduct and that the Government’s
presentation of evidence to prove such conduct in support of the enhancements
violated its obligation under the plea agreement to dismiss the hostage taking
charges.
      “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). Garza’s
challenge to the appeal waiver is contradicted by the plain language of his plea
agreement as well as his statements at rearraignment indicating that he
understood and accepted the terms of his plea agreement, including the appeal
waiver. The appeal waiver is valid and bars his challenge to the enhancements
under § 2L1.1(b)(5)(B) and (b)(8)(A).
      APPEAL DISMISSED.

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