     Case: 13-40212       Document: 00512444553         Page: 1     Date Filed: 11/18/2013




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

                                                                            FILED
                                                                        November 18, 2013
                                     No. 13-40212
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSEMEL HERRERA-DELGADILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-602-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Josemel Herrera-Delgadillo pleaded guilty pursuant to a plea agreement
to one count of possession with intent to distribute more than 500 grams of
methamphetamine. In the plea agreement, Herrera-Delgadillo waived the right
to appeal her conviction and sentence on all grounds and retained only the right
to appeal a sentence that exceeded the statutory maximum or which resulted
from an upward departure not requested by the Government. The district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40212     Document: 00512444553      Page: 2   Date Filed: 11/18/2013

                                  No. 13-40212

varied downwardly from the advisory guidelines range and sentenced Herrera-
Delgadillo to the statutory minimum sentence of 120 months of imprisonment.
      On appeal, Herrera-Delgadillo argues for the first time that the appeal
waiver is ineffective because the district court did not comply with Federal Rule
of Criminal Procedure 11(b)(1)(N), which requires the district court to make sure
before accepting a guilty plea that the defendant understands the terms of any
appellate-waiver provision. She asserts that the district court described the
waiver only generally and did not advise her adequately about the implications
of the waiver or the limitations that the waiver imposed on her appellate rights.
Because Herrera-Delgadillo did not specifically object to the plea colloquy as it
pertains to Rule 11(b)(1)(N), our review is for plain error only. See United States
v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011).
      The record reflects that the Rule 11 plea colloquy was sufficient to ensure
that Herrera-Delgadillo understood the terms of the appeal waiver and that the
waiver was knowing and voluntary. See United States v. Gonzalez, 259 F.3d 355,
358 (5th Cir. 2001); Oliver, 630 F.3d at 411-12. The district court confirmed that
she read and understood the plea agreement containing the appeal waiver, and
she did not raise questions or express confusion about its terms. The prosecutor
at rearraignment delineated the terms of the waiver, including the exceptions,
and Herrera-Delgadillo averred that the prosecutor’s summary conformed with
her understanding of the waiver. The district court separately advised Herrera-
Delgadillo that she was waiving her right to appeal her conviction and sentence
except under “very limited circumstances” – i.e., the exceptions expressly noted
by the prosecutor and contained in the plea agreement that she stated that she
read and understood. Accordingly, Herrera-Delgadillo has not shown any error
with regard to the Rule 11 plea colloquy. See Oliver, 630 F.3d at 412; United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
      Herrera-Delgadillo nonetheless asserts that the appeal waiver does not
apply because she seeks to raise an issue that falls within an exception to the

                                        2
    Case: 13-40212     Document: 00512444553     Page: 3   Date Filed: 11/18/2013

                                  No. 13-40212

waiver. She argues that the district court erroneously determined that she was
not entitled to safety-valve relief pursuant to U.S.S.G. § 5C1.2, and that the
denial of safety-valve relief was tantamount to an upward departure. However,
application of the safety valve does not implicate a departure and, in this case,
the district court denied safety-valve relief at the request of the Government and
opted to impose the statutory minimum sentence after varying downwardly from
the guidelines range based upon the sentencing factors in 18 U.S.C. § 3553(a).
See § 5C1.2; see also U.S.S.G. § 5G1.1, comment; United States v. Flanagan, 80
F.3d 143, 148 n.4 (5th Cir. 1996). Thus, Herrera-Delgadillo’s challenge to the
denial of safety-valve relief falls within the terms of the waiver. See United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      Accordingly, the judgment of the district court is AFFIRMED.




                                        3
