     Case: 12-30672         Document: 00512242387          Page: 1    Date Filed: 05/15/2013




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

                                                                               FILED
                                                                              May 15, 2013
                                         No. 12-30672
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee

v.

PABLO SOLIS,

                                                     Defendant-Appellant


                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:07-CR-343-3


Before JONES and CLEMENT, Circuit Judges, and KAZEN*, District Judge.
PER CURIAM:**
       Pursuant to a written plea agreement, Pablo Solis pled guilty to conspiracy
to distribute and to possess with intent to distribute five kilograms or more of
cocaine hydrochloride. He also waived appeal of his conviction and sentence,
except for any sentence exceeding the statutory maximum. Following a prior
appeal by the Government that resulted in a sentence on remand of increased
confinement, Solis asks this court to set aside the waiver and reconsider his


       *
           District Judge of the Southern District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30672       Document: 00512242387   Page: 2   Date Filed: 05/15/2013

                                  No. 12-30672

criminal history assessment. Finding the waiver to be enforceable, we DISMISS
this appeal.
      Solis was initially granted a safety-valve reduction and sentenced to
60 months of imprisonment, well below the 120-month statutory minimum.
See 21 U.S.C. § 841(b)(1)(A). The Government appealed, and this court reversed
the district court’s judgment, vacated Solis’s sentence, and remanded the case
for resentencing. United States v. Solis, 675 F.3d 795, 802 (5th Cir. 2012). On
remand, Solis was resentenced to 120 months of imprisonment and three years
of supervised release.
      In the present appeal, Solis argues that the presentence report erred in
assessing him two criminal history points since at least one of his prior
convictions occurred more than 10 years before the commission of the instant
offense.   Were this alleged error in the criminal history calculation to be
corrected, Solis would be safety-valve eligible and the district court would not
have erred in exercising its discretion to depart below the statutory minimum
to a 60-month sentence. Against this claim, the Government seeks enforcement
of the appeal waiver provision of the plea agreement.

      “A defendant may waive his statutory right to appeal if the waiver is
knowing and voluntary. We apply normal principles of contract interpretation
when construing plea agreements.” United States v. McKinney, 406 F.3d 744,
746 (5th Cir. 2005) (internal citations omitted). A review of the record shows
that Solis knowingly and voluntarily waived his right to appeal by indicating he
had reviewed and understood the appeal waiver. Consideration of this appeal
is therefore barred. It is of no legal consequence that the Government chose to
appeal Solis’s sentence in the first instance. It is not unfair that only one side
can appeal under the arrangements of the plea deal, because that was the
bargain Solis struck with the Government, and we cannot say the condition was


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                                No. 12-30672

unconscionable. Cf. United States v. Salas-Avalos, 459 F. App’x 318, 321 (5th
Cir. 2012) (per curiam) (approving appeal waiver where no included terms had
previously been deemed unconscionable by this court).
                                                         APPEAL DISMISSED.




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