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

                                                FILED
                                                                 June 8, 2009
                                No. 08-40812
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

GERARDO ESQUIVEL-SOLIS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:06-CR-387-2


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Gerardo Esquivel-Solis was charged with a single count of conspiracy to
possess with intent to distribute more than five kilograms of cocaine. Pursuant
to a written plea agreement, Esquivel-Solis pleaded guilty to the count alleged
in the indictment. Under the terms of the agreement, Esquivel-Solis waived his
right to appeal his conviction and sentence, with the exception of (a) a sentence




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-40812

imposed above the statutory maximum, or (b) an upward departure that was not
requested by the Government.
      Esquivel-Solis argues on appeal that his guilty plea was invalid because
it was not knowing and voluntary. He specifically asserts that he pleaded guilty
because he believed that his trial counsel had promised him that he would be
sentenced to only 18 months of imprisonment. Esquivel-Solis contends that the
invalidity of his plea renders unenforceable the waiver-of-appeal provision. The
Government seeks to enforce the appeal waiver.
      To enter a knowing and voluntary guilty plea, the defendant must have a
“full understanding of what the plea connotes and of its consequence.” Boykin
v. Alabama, 395 U.S. 238, 244 (1969). This court reviews de novo whether a
waiver of appeal bars an appeal. United States v. Baymon, 312 F.3d 725, 727
(5th Cir. 2002).   To determine the validity of an appeal waiver, this court
conducts a two-step inquiry, asking 1) whether the waiver was knowing and
voluntary and 2) whether, under the plain language of the plea agreement, the
waiver applies to the circumstances at issue. United States v. Bond, 414 F.3d
542, 544 (5th Cir. 2005).
      The record indicates that Esquivel-Solis knowingly and voluntarily waived
his right to appeal. Esquivel-Solis signed the agreement containing the waiver-
of-appeal provision. At rearraignment, the district court specifically reviewed
with Esquivel-Solis the terms of the agreement. Esquivel-Solis indicated that
he understood the provision and comprehended the rights that he was forgoing
by consenting to the provision. Accordingly, Esquivel-Solis’s plea agreement,
including the waiver provision, was knowing and voluntary. See Boykin, 359
U.S. at 242-44; Bond, 414 F.3d at 544.
      Moreover, under the plain language of the agreement, the waiver applies
to the circumstances at issue. Esquivel-Solis does not argue on appeal that he
received a sentence above the statutory maximum or an upward departure not
requested by the Government. Thus, Esquivel-Solis’s instant challenge is not

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explicitly excepted from the appellate waiver. Accordingly, the waiver is valid
and enforceable.
      To the extent that the voluntariness of Esquivel-Solis’s plea implicates the
validity of his waiver and may be considered on appeal in spite of the waiver, he
has failed to show that his guilty plea was not knowing and voluntary. The plea
agreement and the district court’s admonitions at sentencing advised Esquivel-
Solis that his sentence had not yet been determined and that any promises
related to sentencing were non-binding.          Esquivel-Solis specifically was
instructed that the mandatory minimum term of imprisonment was 10 years and
that the maximum sentence was life imprisonment. See United States v. Rivera,
898 F.2d 442, 447 (5th Cir. 1990) (holding that a defendant understands the
consequences of a guilty plea with respect to sentencing if he is informed of the
maximum potential sentence). Esquivel-Solis also confirmed that he had not
been promised anything beyond the agreement and that his plea was not
induced by offers of sentencing leniency; Esquivel-Solis was aware that his plea
could not be challenged on the ground that the sentence imposed was more
severe than he expected. Esquivel-Solis further stated explicitly that his plea
was voluntary and had not been induced by threats or intimidation. Esquivel-
Solis’s confirmations under oath are given a strong presumption of verity and
directly contradict his instant contention that his plea was prompted by his trial
counsel’s sentencing promises. See Blackledge v. Allison, 431 U.S. 63, 74 (1977).
      The judgment of the district court is AFFIRMED.




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