     Case: 09-40766 Document: 00511402171 Page: 1 Date Filed: 03/04/2011




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

                                                 FILED
                                                                            March 4, 2011

                                       No. 09-40766                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee
v.

HECTOR RAMIREZ, JR.,

                                                   Defendant–Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                      USDC No. 5:07-CR-759-2; No. 5:09-CV-4


Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Hector Ramirez Jr., federal prisoner # 79732-179, appeals the district
court’s dismissal of his motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence. We affirm.
                                              I.
       Ramirez pleaded guilty, pursuant to a written plea agreement, to one
count of conspiracy to possess with intent to distribute more than 100 kilograms
of marijuana and more than five kilograms of cocaine. The plea agreement,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-40766

which Ramirez signed and dated on July 25, 2007, contained the following
paragraph, titled “Waiver of Appeal”:
            Defendant is aware that Title 18, U.S.C. § 3742 affords a
     defendant the right to appeal the sentence imposed.            The
     defendant agrees to waive the right to appeal the sentence imposed
     or the manner in which it was determined on any ground set forth
     in Title 18 U.S.C. § 3742. Additionally, the defendant is aware
     that Title 28, U.S.C. § 2255, affords the right to contest or
     “collaterally attack” a conviction or sentence after the conviction
     or sentence has become final. The defendant waives the right to
     contest his conviction or sentence by means of any post-conviction
     proceeding, including but not limited to Title 28, U.S.C. §§ 1651,
     2241 and 2255.
(emphasis omitted). On the same day, Ramirez also signed and dated the
following addendum to the plea agreement:
           I have consulted with my attorney and fully understand all
     my rights with respect to the indictment pending against me. My
     attorney has fully explained and I understand all my rights with
     respect to the provisions of the United States Sentencing
     Commission’s Guidelines Manual which may apply in my case. I
     have read and carefully reviewed every part of this plea agreement
     with my attorney. I understand this agreement and I voluntarily
     agree to its terms.
     On August 7, 2007, Ramirez was rearraigned by the Magistrate Judge
assigned to the case. At the rearraignment, the Magistrate Judge confirmed
that Ramirez had reviewed and signed the plea agreement. The Magistrate
Judge also admonished Ramirez with respect to the waiver-of-appeal provision
in the plea agreement:
     THE COURT:          I will also remind . . . you that you are waiving
                         your right to an appeal. . . . [D]o you understand
                         that by waiving your right to appeal you can no
                         longer argue your case to another Court? Mr.
                         Ramirez?
     DEFENDANT:          Yes, ma’am.




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                                     No. 09-40766

       The Magistrate Judge reported the guilty plea to the district court and
recommended that the district court accept the plea. Neither party objected
to the recommendation, and the district court accepted the plea and sentenced
Ramirez to 210 months of imprisonment and five years of supervised release.
Ramirez did not take a direct appeal.
       In January 2009, Ramirez filed the instant motion challenging his
sentence under 28 U.S.C. § 2255. The district court dismissed the motion with
prejudice, finding, among other things, that (1) Ramirez’s waiver in the plea
agreement of his right to collateral relief was knowing and voluntary; and (2)
his claims that he was denied due process and effective assistance of counsel
in connection with his sentencing were barred by his waiver of collateral relief.
Ramirez appealed, and we issued a Certificate of Appealability (COA) with
respect to “whether Ramirez knowingly and voluntarily waived the right to
pursue relief under § 2255.”1
                                            II.
       We review de novo whether a waiver provision in a plea agreement bars
an appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).
       “A defendant may waive his statutory right to appeal if the waiver is
knowing and voluntary.” United States v. McKinney, 406 F.3d 744, 746 (5th Cir.
2005) (citing United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999)); see
also United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (“To be valid, a
defendant’s waiver of his right to appeal must be informed and voluntary. A
defendant must know that he had a ‘right to appeal his sentence and that he was
giving up that right.’”) (citation omitted).




      1
        “We have jurisdiction to address only the issue specified in the COA. To the extent
that [Ramirez] raises other issues, we do not address them.” United States v. Daniels, 588
F.3d 835, 836 n.1 (5th Cir. 2009) (per curiam) (citation omitted).

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                                  No. 09-40766

      [W]hen the record of the Rule 11 hearing clearly indicates that a
      defendant has read and understands his plea agreement, and that
      he has 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.
McKinney, 406 F.3d at 746 (quoting Portillo, 18 F.3d at 293).
      We are satisfied that, on the basis of the record, Ramirez’s waiver in the
plea agreement of his right to collateral relief was knowing and voluntary. At
the hearing, the Magistrate Judge confirmed that Ramirez had reviewed and
signed the plea agreement, which included an explicit, unambiguous waiver of
collateral relief. Although the Magistrate Judge did not ask Ramirez if he
understood the plea agreement, Ramirez signed an addendum to the plea
agreement that provided that he had read and carefully reviewed every part of
his plea agreement with his attorney, that he understood the agreement, and
that he entered into the agreement voluntarily. In addition, the Magistrate
Judge informed Ramirez that in agreeing to plead guilty, he would be “waiving
[his] right to an appeal” such that he could “no longer argue [his] case to another
Court.” This phrasing necessarily includes both direct and collateral attacks,
and it is consistent with the structure of the plea agreement, which places the
waiver-of-collateral-relief language within a paragraph entitled “Waiver of
Appeal.” Cf. United States v. Delgado-Ramirez, 236 F. App’x 983, 984 (5th
Cir. 2007) (unpublished) (finding that a waiver of appeal is unknowing and
involuntary when the district court mischaracterizes the waiver provision).
Lastly, we find that at no point during the rearraignment did Ramirez or his
attorney raise a question or express any confusion about the waiver-of-appeal
provision, and Ramirez did not object to the Magistrate Judge’s report and
recommendation to the district court.
      On this record, therefore, we find that Ramirez’s waiver of his right to
collateral relief was knowing and voluntary, and thus it bars his claims that he

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                                   No. 09-40766

was denied due process and effective assistance of counsel in connection with
his sentencing. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994)
(holding that “as a general matter . . . an informed and voluntary waiver of
post-conviction relief [under § 2255] is effective to bar such relief,” although
“[s]uch a waiver may not always apply to a collateral attack based upon
ineffective assistance of counsel”) (citation omitted); cf. United States v. White,
307 F.3d 336, 343 (5th Cir. 2002) (“[A]n ineffective assistance of counsel
argument survives a waiver of appeal only when the claimed assistance directly
affected the validity of that waiver or the plea itself.”).
      Ramirez cites to several decisions in support of his argument that his
waiver was unknowing and involuntary. See United States v. Rodriguez, 98
F. App’x 355, 356 (5th Cir. 2004) (unpublished) (holding that a waiver that is
not mentioned during rearraignment “cannot be held to have been knowing
and voluntary”); United States v. Hoot, 86 F. App’x 16, 16 (5th Cir. 2004)
(unpublished) (same). These cases are inapposite, however, because they involve
situations where the waiver was not even mentioned during the defendant’s
rearraignment.
      Accordingly, we affirm the decision of the district court.
      AFFIRMED.




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