                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-3285

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                  v.

JACINTO C HAPA,
                                              Defendant-Appellant.


         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
           No. 1:07-CR-073-3—Larry J. McKinney, Judge.



     A RGUED F EBRUARY 12, 2010—D ECIDED A PRIL 26, 2010




  Before E ASTERBROOK, Chief Judge, and H AMILTON,
Circuit Judge, and SPRINGMANN, District Judge. 
  S PRINGMANN, District Judge. This is a direct appeal
from a criminal conviction in the United States District
Court, Southern District of Indiana, following the entry



   The Honorable Theresa L. Springmann, District Judge for
the United States District Court, Northern District of Indiana,
sitting by designation.
2                                               No. 09-3285

of a guilty plea by the Appellant, Jacinto Chapa, on
April 24, 2009. Chapa pled guilty and was convicted on
one count of conspiracy to possess with the intent to
distribute 1,000 or more kilograms of marijuana, in vio-
lation of 21 U.S.C. §§ 841(a)(1) and 846. The Defendant
asks this Court to vacate his conviction and remand this
case to the District Court for trial because his guilty plea
was invalid. Because we conclude that the Defendant
waived his right to appeal his conviction, we dismiss
the appeal.


                      I. Background
  Jacinto Chapa was charged with conspiracy to possess
with the intent to distribute 1,000 or more kilograms of
marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846
on December 18, 2007. After the Government filed an
information alleging a prior drug felony conviction, which
enhanced the potential penalties pursuant to 21 U.S.C.
§ 851(a)(1), Chapa provided a statement to the Govern-
ment for the purpose of meeting the qualifications for
safety valve treatment under 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2. Chapa then entered into a plea agree-
ment with the Government on April 7, 2009. At the time
the plea agreement was signed, it was the understanding
of both Chapa and the Government that Chapa would
qualify for safety valve treatment, and thus receive a
sentence lower than the mandatory minimum sentence
of twenty years.
  In the written plea agreement, under the subheading
of “APPELLATE WAIVER,” Chapa acknowledged his
No. 09-3285                                            3

right to appeal the conviction and sentence, and waived
that right. The section stated:
   Defendant understands that he has a statutory right
   to appeal the conviction and sentence imposed and
   the manner in which the sentence was determined.
   Acknowledging this right and in exchange for the
   concessions made by the Government in this Plea
   Agreement, Defendant expressly waives his right to
   appeal the conviction and any sentence imposed
   on any ground, including the right to appeal
   conferred by 18 U.S.C. § 3742. Additionally, he also
   expressly agrees not to contest his conviction or sen-
   tence or seek to modify his sentence or the manner
   in which it was determined in any type of pro-
   ceeding, including, but not limited to, an action
   brought under 28 U.S.C. § 2255.
  Chapa appeared before the District Court to enter his
plea of guilty on April 24, 2009. The Court ascertained
that Chapa was 31 years old, was not under the
influence of intoxicants, and had no difficulty reading
and writing the English language or in communicating
with his counsel. The District Court then made a
finding that Chapa was aware of the charge to which
he was pleading.
  During the proceeding, the Court addressed the express
waiver of appeal contained in the plea agreement. The
Court read aloud the waiver nearly verbatim. When the
Court asked if Chapa understood the waiver, he re-
sponded, “Yes, sir.” When the Court asked whether
Chapa understood that he would have the right to
appeal absent his guilty plea, he responded, “Yes, sir.”
4                                               No. 09-3285

  The Court then addressed the issue of Chapa’s volun-
tariness in pleading guilty. The Court stated, “Paragraph
13, sir, says that you acknowledge that no threats, prom-
ises, or representations have been made nor agree-
ments reached other than those set forth in this docu-
ment to induce you to plead guilty. Is that still true?”
Chapa responded, “Yes, sir.” Chapa stated that he had
read the entire plea agreement, had discussed it with his
attorney, and that the terms of the agreement correctly
reflected the result of his plea negotiations. The Court
then asked, “It says you’re freely and voluntarily
pleading guilty in this case because you are guilty. Is
that still true?” Chapa responded, “Yes, sir.” The Court
then accepted the guilty plea, finding Chapa “fully compe-
tent and capable of entering an informed plea; that he’s
aware of the nature of the charges and the consequences
of the plea; that this plea of guilty is a knowing and
voluntary plea supported by an independent basis in fact.”
  The Presentence Investigation Report (PSR) prepared
on May 28, 2009, noted that Chapa was not, in fact, eligible
for safety valve treatment. At the ensuing sentencing
hearing held on September 3, 2009, Chapa objected to the
findings of the PSR, but did not move to withdraw his
plea of guilty or present the argument that he had not
knowingly, intelligently, and voluntarily entered his
guilty plea. Chapa was then sentenced to the statutory
mandatory minimum of twenty years in prison.


                       II. Analysis
 Before we can reach the merits of Chapa’s arguments,
we must determine whether to dismiss this appeal
No. 09-3285                                                     5

because Chapa entered into a plea agreement with the
aforementioned appellate waiver.
  We review the enforceability of a waiver agreement
de novo. Jones v. United States, 167 F.3d 1142, 1144 (7th
Cir. 1999). It is well-settled that appellate waivers in
plea agreements are generally enforceable. United States
v. Emerson, 349 F.3d 986, 988 (7th Cir. 2003); see United
States v. Nave, 302 F.3d 719, 720-21 (7th Cir. 2002). “But
[an appellate waiver] does not, in every instance, fore-
close review.” United States v. Mason, 343 F.3d 893, 894
(7th Cir. 2003) (internal quotation marks and citation
omitted). For the waiver to be enforceable, the disputed
appeal must fall within its scope. See United States v. Vega,
241 F.3d 910, 912 (7th Cir. 2001) (per curiam). We will
enforce an appellate waiver if its terms are “express
and unambiguous,” see United States v. Woolley, 123 F.3d
627, 632 (7th Cir. 1997), and the record shows that the
defendant “ ‘knowingly and voluntarily’ ” entered into the
agreement. United States v. Jemison, 237 F.3d 911, 917
(7th Cir. 2001) (quoting Jones v. United States, 167 F.3d
1142, 1144 (7th Cir. 1999)).1



1
  As we noted in Woolley, one reason for permitting crim-
inal defendants to agree to waive their rights as a part of a
plea negotiation process was articulated by the Supreme
Court: “[I]f the prosecutor is interested in ‘buying’ the relia-
bility assurance that accompanies a waiver agreement, then
precluding waiver can only stifle the market for plea bar-
gains. A defendant can ‘maximize’ what he has to ‘sell’ only if
he is permitted to offer what the prosecutor is most interested
in buying.” United States v. Mezzanatto, 513 U.S. 196, 207 (1995).
6                                              No. 09-3285

  A plea agreement is a type of contract subject to
contract law principles tempered by limits that the Con-
stitution places on the criminal process. See United States
v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). To determine
if a defendant knew and understood the plea agree-
ment, we must examine the language of the plea agree-
ment itself and also look to the plea colloquy between
the defendant and the judge. Woolley, 123 F.3d at 632;
see also United States v. Sura, 511 F.3d 654, 661 (7th Cir.
2007) (the district court must inform the defendant of
an appellate waiver during the Rule 11 colloquy).
  In this case, Chapa does not contend that the terms of
the waiver were not express and unambiguous. Nor
could he. The waiver was set forth in plain language
in the plea agreement under its own heading, and
Chapa averred that he read the agreement and dis-
cussed its meaning and implications with his attorney.
Rather, Chapa asserts that both he and the Govern-
ment mistakenly believed that he would satisfy the
requirements for sentencing pursuant to the safety valve
provision. He contends that this “mutual mistake” invali-
dates the plea agreement, including the appellate
waiver, because it renders his agreement unknowing
and involuntary. This assertion is not supported by
either the language of the plea agreement or the Rule 11
colloquy.
  In examining the plea agreement, we do not find sup-
port for Chapa’s position that his agreement was predi-
cated on the mutual mistake as to his eligibility for
safety valve treatment. Paragraph eleven of the agree-
ment includes the provisions, “Defendant understands
No. 09-3285                                            7

that if he does not qualify for [safety valve treatment],
defendant will be subject to a statutory mandatory mini-
mum sentence” and “[a]bsent the applicability of [safety
valve treatment], the Court cannot sentence below a
statutory mandatory minimum term of imprisonment.”
This language was preceded by one paragraph with
Chapa’s waiver of appellate rights. The agreement, there-
fore, leaves no doubt that Chapa contemplated his poten-
tial safety valve ineligibility when waiving his right to
appeal.
  Examination of the Rule 11 colloquy further under-
scores this Court’s determination that the Defendant
knowingly and voluntarily agreed to the express and
unambiguous appellate waiver. The record indicates
that the experienced trial judge conducted a searching
inquiry to ascertain that the Defendant understood all of
the terms of the plea agreement. The judge highlighted
all of the terms including potential penalties and sen-
tencing, and Chapa indicated that he understood them.
The judge also stressed the fact that without the
safety valve, the District Court could not sentence him
below the mandatory minimum. Chapa also acknowl-
edged that he had waived his right to appeal, and that
no threats, promises, representations, or agreements
other than those set forth in the plea agreement had
induced him to plead guilty.
  Such representations, made by a defendant under
oath at a plea colloquy, are entitled to a presumption of
correctness. United States v. Bowlin, 534 F.3d 654, 660
(7th Cir. 2008). Only after making a complete record
demonstrating that Chapa understood the terms of the
8                                            No. 09-3285

waiver did the District Court accept the plea of guilty.
Thus, as in United States v. Schmidt, “[t]he guilty plea
hearing could not be more clear in reflecting that it was
conducted in full accordance with Fed.R.Crim.P. 11, and
reveals that [Chapa] knowingly and voluntarily waived
his right to appeal his . . . sentence.” 47 F.3d 188, 191
(7th Cir. 1995).


                      III. Conclusion
    Chapa’s appeal is D ISMISSED.




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