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

                                                                 FILED
                                                              November 20, 2007
                                 No. 06-11346
                               Summary Calendar           Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

WALLY LUPE COBOS

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3: 05-CR-314-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
     Wally Lupe Cobos appeals his guilty-plea conviction for conspiracy to
possess with intent to distribute more than 500 grams of methamphetamine and
more than five kilograms of cocaine. Cobos argues that the sentence appeal
waiver in his plea agreement was not made knowingly and voluntarily, and he
therefore requests that the waiver be stricken and he be allowed to appeal his
sentence without limitation.



     *
      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should not be published and is not precedent except under the limited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.
                                 No. 06-11346

      A defendant may waive his statutory right to appeal provided (1) his
waiver is knowing and voluntary and (2) the waiver applies to the circumstances
at hand, based on the plain language of the agreement. United States v. Palmer,
456 F.3d 484, 488 (5th Cir. 2006). This court construes a plea agreement,
including appeal waivers, using principles of contract interpretation. Id. Given
the significance of the rights involved, appeal waivers are construed narrowly
and against the Government. Id.
      Cobos argues that the appeal waiver was not made knowingly and
voluntarily because both he and the Government were mistaken about whether
he would be subject to the career offender enhancement. Cobos asserts that the
parties shared a misunderstanding about whether his 1988 conviction for
possession with intent to distribute cocaine was too remote to be counted under
the career offender guideline and, therefore, the parties were laboring under a
“mutual mistake” that went to the basic assumption of the agreement. However,
the plea agreement and the plea colloquy unambiguously established that Cobos
understood at the time of his plea that the district court had sole discretion to
determine his sentence. The sentence and the appropriate guideline range
therefore were not essential terms of the plea agreement. The purpose of the
agreement was to establish Cobos’s culpability, not to ascertain his sentence, so
any misunderstanding about his eligibility for the career offender enhancement
was irrelevant. See generally Horner v. Bourland, 724 F.2d 1142, 1145 (5th Cir.
1984); see also United States v. Gaitan, 954 F.2d 1005, 1011-12 (5th Cir. 1992).
      Cobos additionally alleges that the sentence appeal waiver should be
invalidated because the Government failed to offer sufficient consideration in
exchange for the waiver of his appellate rights. However, under the plea
agreement, the Government agreed not to bring any additional charges against
Cobos related to the offense of conviction and promised to dismiss any remaining
charges from the original or superseding indictment.          Additionally, the
Government agreed to file a motion urging the court to consider a reduction of

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Cobos’s sentence if the Government concluded that Cobos had provided
substantial assistance in the investigation or prosecution of others.
Furthermore, as a consequence of executing the plea agreement, Cobos was
awarded a three-level reduction for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1. Thus, Cobos received consideration in return for his guilty
plea and the waiver of his appellate rights. See, e.g., United States v. Fields, 906
F.2d 139, 141-42 (5th Cir. 1990); Smith v. Estelle, 562 F.2d 1006, 1008 (5th Cir.
1977).
      Cobos alternatively argues that he did not knowingly enter into the plea
agreement because his defense attorney unilaterally labored under the mistaken
belief that the career offender enhancement was not applicable. Cobos asserts
that this unilateral mistake resulted in Cobos having a good faith belief that he
was excepted from the career offender provision. However, Cobos has not shown
that his consent to the plea agreement was induced by a clear and unequivocal
guarantee of a lesser sentence. See Daniel v. Cockrell, 283 F.3d 697, 703 (5th
Cir. 2002), abrogation on other grounds recognized by United States v. Grammas,
376 F.3d 433, 437-38 (5th Cir. 2004). The plea agreement did not contain any
specific sentencing guarantees, and Cobos was informed that the district court
possessed ultimate discretion to determine his sentence. Although Cobos and
his attorney may have been surprised that the career offender provision applied,
their erroneous sentencing expectations do not render involuntary Cobos’s
assent to the plea agreement. See United States v. Gracia, 983 F.2d 625, 629
(5th Cir. 1993); Daniel, 283 F.3d at 703.
      Cobos further asserts that the court should invalidate the appeal waiver
because the waiver provision is both substantively and procedurally
unconscionable. According to Cobos, the plea agreement should not be enforced
because there was a substantial disparity in the bargaining power between him
and the Government and the terms of the waiver provision are oppressive and
overly harsh. Cobos has not shown that the appeal waiver rendered his plea

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agreement an unconscionable contract of adhesion.         A review of the plea
agreement reveals no unconscionable terms. This court has routinely permitted
appeal waivers identical to those in the instant case. See, e.g.; United States v.
Bond, 414 F.3d 542, 543-44 (5th Cir. 2005); United States v. Burns, 433 F.3d 442,
443-44 (5th Cir. 2005). Furthermore, the record confirms that Cobos’s waiver
was knowing and voluntary. See United States v. Portillo, 18 F.3d 290, 292-93
(5th Cir. 1994).
      The judgment of the district court is AFFIRMED.




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