IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40629

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DELFINO RODRIGUEZ-ESTRADA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

CARL E. STEWART, Chief Judge:

Defendant-Appellant Delfino Rodriguez-Estrada (“Rodriguez”) pleaded 

guilty to being found in the United States after deportation. The plea 

agreement contained a waiver provision, whereby Rodriguez agreed to waive 

his right to appeal. On appeal, Rodriguez challenges the district court’s 

imposition of a sixteen-level enhancement to his sentence pursuant to U.S. 

Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii). He contends that this

issue does not fall within the purview of the appeal waiver and, therefore, may 

be raised on appeal. Because we hold that this issue is encompassed within 

Rodriguez’s appeal waiver, his appeal is DISMISSED.

United States Court of Appeals

Fifth Circuit

FILED

January 31, 2014

Lyle W. Cayce

Clerk

 Case: 12-40629 Document: 00512519090 Page: 1 Date Filed: 01/31/2014
No. 12-40629

I.

Rodriguez was charged and eventually pleaded guilty to being found in 

the United States after deportation, a violation of 8 U.S.C. § 1326(a)–(b). In 

the plea agreement, Rodriguez agreed to waive his right to appeal. 

The plea agreement read, in pertinent part: 

The defendant agrees to waive the right to appeal the sentence 

imposed or the manner in which it was determined on any 

grounds set forth in Title 18 U.S.C. § 3742. . . . The defendant 

waives the right to contest his/her conviction or sentence by means 

of any post-conviction proceeding, including but not limited to 

Title 28, U.S.C. § 2255.

In the presentence report (“PSR”), Rodriguez was assigned a base offense 

level of eight. In addition, Rodriguez was assessed a sixteen-level increase 

under § 2L1.2(b)(1)(A)(ii) for a previous conviction—a 2009 conviction in New 

Jersey for aggravated assault. He also received a three-level reduction for 

acceptance of responsibility, resulting in a total offense level of twenty-one. 

Because he had a criminal history category of III, he had a sentencing guideline 

range of forty-six to fifty-seven months. While the PSR described the New 

Jersey conviction as a crime of violence, Rodriguez contested that 

characterization and the corresponding sixteen-level enhancement.

During the rearraignment, the magistrate judge (“MJ”) reviewed the 

plea agreement with Rodriguez. Rodriguez testified that he understood the 

agreement and that his attorney had read and explained the agreement to him. 

However, the MJ incorrectly informed Rodriguez that, while he was waiving 

his right to appeal his conviction and sentence, he retained the right to assert 

an ineffective assistance of counsel claim and a prosecutorial misconduct claim. 

Rodriguez responded that he understood the plea agreement. Following the 

prosecutor’s statement of the factual basis for the plea, Rodriguez stated that 

he wished to reserve his right to object to the characterization of his New 

2

 Case: 12-40629 Document: 00512519090 Page: 2 Date Filed: 01/31/2014
No. 12-40629

Jersey conviction as a crime of violence. The MJ responded that Rodriguez 

reserved that right.

During his sentencing hearing, Rodriguez again asserted his argument 

that the New Jersey conviction was not a crime of violence, but the district 

court overruled his objection and found that the conviction was a crime of 

violence. Pursuant to the plea agreement, the Government moved for a twolevel downward departure, which the district court granted. Rodriguez’s total 

offense level changed to nineteen with a guideline range of thirty-seven to 

forty-six months. The district court sentenced Rodriguez to thirty-seven

months in prison. The district court acknowledged that it chose to impose the 

thirty-seven month sentence because Rodriguez gave up his right to appeal in 

the plea agreement. In accordance with the plea agreement, the Government 

recommended a sentence at the low end of the range. The district court further 

stated that, in light of Rodriguez’s past arrests, it might have sentenced 

Rodriguez at the high end of the guidelines range if not for the plea agreement. 

Rodriguez timely appealed.1 

Rodriguez challenges the sixteen-level enhancement under U.S.S.G. § 

2L1.2(b)(1)(A)(ii) imposed by the district court. Additionally, he contends that

neither he nor the government intended to include the characterization of his 

prior New Jersey conviction within the purview of the appeal waiver. 

Therefore, he argues that his appeal is not barred. Before we address 

Rodriguez’s challenge to his sentence, we must first determine whether he 

waived his right to appeal this issue.

1 In response, the Government filed a motion to dismiss Rodriguez’s appeal because 

he waived his right to appeal. A panel of this court denied the motion to dismiss, reasoning 

that it was possible that the waiver was not knowing and voluntary because the MJ 

mischaracterized the appeal waiver at the rearraignment.

3

 

 Case: 12-40629 Document: 00512519090 Page: 3 Date Filed: 01/31/2014
No. 12-40629

II.

The validity of a party’s waiver of appeal is reviewed de novo. United 

States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005). “A defendant may waive his 

statutory right to appeal as part of a valid plea agreement, provided (1) his or 

her 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. Scallon, 683 F.3d 680, 682 (5th Cir. 2012) (internal quotation marks 

and citation omitted) (per curiam).

When determining the proper scope of a waiver, courts utilize “ordinary 

principles of contract interpretation.” United States v. Cooley, 590 F.3d 293,

296 (5th Cir. 2009). Although waivers are “interpreted narrowly against the 

government,” id., courts “will not read ambiguity into an agreement in which 

none readily manifests itself.” United States v. Lopez, 427 F. App’x 402, 403

(5th Cir. 2011) (per curiam) (unpublished) (citing United States v. Bond, 414 

F.3d 542, 545 (5th Cir. 2005)). Thus, “[i]n the absence of evidence that the 

parties to the agreement intended [] a specialized, non-natural definition, we 

apply the term’s usual and ordinary meaning.” United States v. Jacobs, 635 

F.3d 778, 781 (5th Cir. 2011) (per curiam) (internal quotation marks and 

citation omitted) (second alteration in original). Rodriguez does not allege that 

his appeal waiver was unknowing and involuntary. Therefore, we proceed to

address whether his waiver encompasses the proper characterization of his 

prior New Jersey conviction.

III.

The appeal waiver explicitly and unambiguously encompassed “the right 

to appeal the sentence imposed or the manner in which it was determined on 

any grounds set forth in Title 18 U.S.C. § 3742.” Applying the ordinary 

meaning of the language used in the waiver, the waiver expressly covers 

Rodriguez’s right to challenge the New Jersey conviction. As evidence that the 

4

 Case: 12-40629 Document: 00512519090 Page: 4 Date Filed: 01/31/2014
No. 12-40629

issue on appeal does not fall within the appeal waiver, Rodriguez relies on the 

MJ’s statement during the rearraignment that Rodriguez retained the right to 

object to the characterization of his prior New Jersey conviction. However, this 

statement was made during the recitation of the factual basis for Rodriguez’s 

plea.2 While the MJ’s statement permitted Rodriguez to raise this objection 

during sentencing, it did not carve out an exception to the appeal waiver. 

During the rearraignment, Rodriguez acknowledged that he read and 

understood the plea agreement, which, as noted above, explicitly encompasses 

the characterization of his prior New Jersey conviction.3 Accordingly, we hold 

that the characterization of Rodriguez’s New Jersey conviction falls within the 

scope of his appeal waiver. Therefore, Rodriguez has waived his right to raise 

this issue on appeal, and we need not address Rodriguez’s challenge regarding

his sentence.

IV.

Because Rodriguez waived his right to appeal his sentence, his appeal is 

DISMISSED.

2 The Court: Are those the facts, Mr. Young?

Mr. Young: Your Honor, they are, with the exception we reserve our right to 

object to the characterization of his New Jersey conviction as an 

aggravated felony or crime of violence. It appears it might be a 

statute that has a []reckless standard and also could have been 

a sentence that wouldn’t qualify as a felony, but we’ll handle that 

- -

 The Court: You will reserve your right.

 Mr. Young: Thank you.

3 Although the MJ incorrectly stated that Rodriguez retained the right to assert 

ineffective assistance of counsel and prosecutorial misconduct claims, there was no 

suggestion that Rodriguez retained the right to challenge the characterization of his New 

Jersey conviction on appeal.

5

 

 Case: 12-40629 Document: 00512519090 Page: 5 Date Filed: 01/31/2014