     Case: 19-60156      Document: 00515148117         Page: 1    Date Filed: 10/07/2019




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

                                    No. 19-60156                             FILED
                                  Summary Calendar                     October 7, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADAN REYES-MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:18-CR-143-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Pursuant to a written plea agreement, Adan Reyes-Martinez pleaded
guilty to failure to depart the United States, in violation of 8 U.S.C.
§ 1253(a)(1), and he was sentenced above the advisory guidelines range to 48
months of imprisonment. Reyes-Martinez waived his right to appeal, but he
reserved the right to appeal a claim of ineffective assistance of counsel. On
appeal, Reyes-Martinez argues that his above-guidelines sentence was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-60156    Document: 00515148117    Page: 2   Date Filed: 10/07/2019


                                No. 19-60156

substantively unreasonable. In lieu of filing a brief, the Government filed a
motion for summary dismissal, seeking enforcement of the appeal waiver.
      A defendant may waive the statutory right to appeal in a valid plea
agreement. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
“This court reviews de novo whether an appeal waiver bars an appeal.” United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In so doing, “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). In this case, the record demonstrates that Reyes-Martinez knowingly
and voluntarily waived his right to appeal, and the appellate waiver applies in
this circumstance. See McKinney, 406 F.3d at 746; United States v. Portillo,
18 F.3d 290, 292 (5th Cir. 1994); United States v. Melancon, 972 F.2d 566, 567-
68 (5th Cir. 1992).
      Accordingly, the Government’s motion for summary dismissal is
GRANTED, and the appeal is DISMISSED.




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