                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 93-8285




                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,


                                VERSUS


                      NICHOLAS ARTHUR PORTILLO,

                                                  Defendant-Appellant.




             Appeal from the United States District Court
                   for the Western District of Texas
                       (    March 23, 1994    )


Before JONES and DeMOSS, Circuit Judges, and SCHWARTZ1, District
Judge.

DeMOSS, Circuit Judge:

        Appellant Portillo was indicted for (1) armed robbery of an

automobile, in violation of 18 U.S.C. § 2119; and (2) use of a

firearm during a crime of violence; in violation of 18 U.S.C. §

924(c).     Portillo filed a motion to dismiss the indictment or,

alternatively, to compel the government to elect between the two

counts, arguing that sentencing him for both charges would violate

the Double Jeopardy Clause.    The district court denied Portillo's

    1
      District Judge of the Eastern District of Louisiana, sitting
by designation.
motion, concluding that Congress intended to cumulatively punish

offenders of both statutes.

     Portillo   unconditionally    pleaded   guilty   to   carjacking.

However, his guilty plea to the gun charge was conditional:

     2.   The Defendant agrees to plead guilty conditionally
     under Fed. R. Crim. P. 11(a)(2) to Count Two of the
     instant indictment (using a firearm during violent
     crime). Specifically, the Defendant reserves the right
     to withdraw his guilty plea on this count only if, upon
     appellate review sought by either party, he prevails on
     his legal argument that he cannot be convicted and
     sentenced on Count Two, in addition to being convicted
     and sentenced on Count One.

His plea agreement also contained a waiver-of-appeal provision:

     13. Except as otherwise provided, the Defendant hereby
     expressly waives the right to appeal his sentence on any
     ground, including any appeal right conferred by 18 U.S.C.
     § 3742, and the Defendant further agrees not to contest
     his sentence in any post-conviction proceeding, including
     but not limited to a proceeding under 28 U.S.C. § 2255.
     The Defendant, however, reserves the right to appeal the
     following: (a) issues specified in Paragraph 2, (b) any
     punishment imposed in excess of a statutory maximum, and
     (c) any punishment to the extent it constitutes an upward
     departure from the guideline range deemed most applicable
     by the sentencing court.

     Portillo's Presentence Report ("PSR") assessed two criminal

history points for his commitment as a 12-year-old to the Texas

Youth Commission for arson and an additional two points because

Portillo was on "parole" from the Youth Commission at the time he

committed the federal offenses.     Portillo objected to the report,

contending that because the juvenile commitment did not involve an

adjudication of guilt, it was not a "sentence" as that term is

defined in the guidelines.        The district court overruled the




                                   2
objection and adopted the PSR's calculation.              The district court

sentenced Portillo to consecutive terms of imprisonment on the

carjacking charge and the gun charge.

       Portillo   appeals   his   sentence,     arguing   that    cumulatively

punishing him for carjacking and carrying a gun "during and in

relation to any crime of violence" violates double jeopardy.

Portillo's double jeopardy argument has been foreclosed by this

court's opinion in United States v. Singleton, wherein the court

held    that   double   jeopardy    was   not    offended    by    cumulative

punishments under both the carjacking statute and the gun statute:

       "We are satisfied, however, that Congress has made a
       sufficiently clear indication of its intent to impose
       cumulative punishments for violations of § 924(c) and all
       crimes of violence, including 'carjacking', to satisfy the
       requirements of the Double Jeopardy Clause."

No. 93-3479, 1994 WL 71535, * 8, ___ F.3d ___, ___ (5th Cir. March

10, 1994).     Portillo's first point of error is therefore denied.

       Portillo also contends that the district court erroneously

considered his juvenile commitment in calculating his criminal

history score. The government asserts that Portillo has waived the

right to appeal his sentence on this ground, relying on the waiver-

of-appeal provision of the plea agreement.          Portillo responds that

the district court did not specifically admonish him concerning the

waiver-of-appeal provision and that the waiver was uninformed and

thus, invalid.

       At the beginning of Portillo's Rule 11 hearing, the court gave

Portillo an opportunity to read over the plea agreement and to have

Portillo's attorney, Mr. Adams, explain it to him.               The agreement


                                      3
itself,    which   Portillo    signed       -   thus   representing   that    he

"understood and agreed to [it] in every respect" - is a three-page

letter, consisting of 15 consecutively numbered paragraphs.              After

Mr. Adams told the court that his client was ready to proceed, the

following colloquy took place:

     THE COURT:        OKAY, MR. PORTILLO, HAVE YOU HAD A CHANCE

     TO GO OVER THAT DOCUMENT?

     PORTILLO:         YES, SIR.

     THE COURT:        COMPLETELY?      I MEAN, THIS TELLS ME, WHAT

     AGREEMENT HAS BEEN WORKED OUT IN YOUR CASE, AND HOW

     EVERYTHING IS GOING TO PROCEED.             NOW, IS THIS DOCUMENT

     ACCURATE?     IS THIS WHAT'S GOING TO HAPPEN IN THIS CASE?

     IS THIS YOUR UNDERSTANDING OF WHAT'S GOING TO HAPPEN IN

     YOUR CASE?

     PORTILLO:         YES, SIR.

     THE COURT:        OKAY.   MR. ADAMS, ARE YOU FULLY SATISFIED

     THAT HIS DOCUMENT SETS OUT THE AGREEMENT THAT'S BEEN

     WORKED OUT, BY YOU, ON BEHALF OF MR. PORTILLO, WITH THE

     GOVERNMENT?

     MR. ADAMS:        YES, YOUR HONOR.

     The court proceeded to admonish Portillo concerning the rights

he was forfeiting by pleading guilty.            Although the court did not

directly   address   Portillo's    waiver        of    appeal   concerning   his

sentence, it indirectly mentioned it by exclusion:

     THE COURT:        DO YOU REALIZE, THAT BY COMING IN HERE

     TODAY, AND PLEADING GUILTY, YOU'RE GIVING UP ALL THESE


                                        4
     RIGHTS I'VE JUST EXPLAINED TO YOU? NO JURY, NO WITNESSES,

     NOTHING.    YOU'RE STILL GOING TO HAVE THE RIGHT TO APPEAL

     THE CONVICTION, SO THAT IF THERE IS AN IMPROPER CASE, IF

     THERE'S ONE TOO MANY CHARGES, IT'S POSSIBLE THAT ONE OF

     THESE CHARGES MIGHT BE DROPPED.     BUT, ASIDE FROM THAT,

     YOU'RE GIVING UP YOUR RIGHT TO A TRIAL, TO A WITNESS, TO

     CONFRONTING THE -- TO -- TRIAL TO A JURY, TO CONFRONTING

     THE WITNESSES, ALL THOSE RIGHTS ARE GIVEN UP.      DO YOU

     UNDERSTAND?

     PORTILLO:         YES, SIR.

     THE COURT:        DO YOU STILL WANT TO GO THROUGH WITH THIS

     GUILTY PLEA AND GIVE UP THOSE RIGHTS?

     PORTILLO:         YES, SIR.

     To be valid, a defendant's waiver of his right to appeal must

be informed and voluntary. U.S. v. Melancon, 972 F.2d 566, 567 (5th

Cir. 1992).     A defendant must know that he had a "right to appeal

his sentence and that he was giving up that right." Id. at 968.

     Portillo's plea agreement informed him of the right to appeal

his sentence and that by entering into the plea agreement, he would

forfeit that right.    Nowhere in the record is there any indication

that Portillo did not understand or was confused by the waiver-of-

appeal provision. Compare United States v. Baty, 980 F.2d 977, 978-

79 (5th Cir. 1992) (defendant's obvious confusion regarding the

waiver provision obligated the district court to insure that

defendant understood her right to appeal and the consequences of

waiving that right).       Indeed, the plea agreement was clearly


                                   5
written and relatively short. Moreover, Portillo confirmed that he

had read the agreement, understood its contents, and wished to

plead guilty.           We hold, therefore, that when the record of the Rule

11    hearing          clearly   indicates   that   a   defendant   has   read   and

understands his plea agreement, and that he raised no question

regarding a waiver-of-appeal provision, the defendant will be held

to the bargain to which he agreed, regardless of whether the court

specifically            admonished   him   concerning    the   waiver   of   appeal.

Accordingly, Portillo's second point of error is denied, and his

sentence is AFFIRMED.2


         2
      Our holding is further supported by the following colloquy
from Portillo's sentencing hearing at which Portillo's attorney
confirmed his and his client's understanding of and intent to honor
the waiver-of-appeal provision:
     THE COURT:      . . . [THE PRESENTENCE REPORT] WILL BE
     SEALED, AND MADE PART OF THE RECORD. AND SHOULD THERE BE
     AN APPEAL, THIS REPORT WOULD BE MADE AVAILABLE FOR
     APPELLATE PURPOSES. IS THERE A MOTION BY THE GOVERNMENT
     JUST WITH THIS -- JUST THE TWO COUNT?
     [GOVERNMENT]: YOUR HONOR, I WOULD JUST LIKE TO NOTE, FOR
     THE RECORD THAT THE PLEA AGREEMENT DOES CALL FOR A NO
     APPEAL PROVISION. AND APART FROM THAT, YOUR HONOR, I
     DON'T BELIEVE THAT THERE IS ANYTHING TO DISMISS.
     THE COURT:      OKAY.
     MR. ADAMS:      THAT IS CORRECT, YOUR HONOR. THE PLEA
     AGREEMENT HAS BEEN COMPLIED WITH.
     THE COURT:      OKAY. THERE IS AN APPEAL WITH REGARD TO
     THE ISSUE OF THE TWO -- NOT THE SENTENCE, BUT THERE WILL
     BE AN APPEAL WITH REGARD TO WHETHER THE TWO CONVICTIONS
     CAN STAND.
     MR. ADAMS:      THAT'S CORRECT.
     [GOVERNMENT]: YES, SIR.
     MR. ADAMS:      YES. . . .
Earlier in the hearing, Portillo's attorney articulated his desire
to "[have] the plea agreement that was negotiated," and promised
the court that if it held the government to its obligations under
the agreement, "there's not going to be an appeal on the
sentence[,] and its that simple." We agree with Mr. Adams, it is
"that simple;" Portillo will be held to the terms of the agreement
to which he pleaded.
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