* Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20121

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDWIN RAMIREZ,

Defendant-Appellant.

 

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-93-3878(CR-H-92-295-3))

November 1, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

BACKGROUND

Edwin Ramirez pleaded guilty pursuant to a written plea

agreement to conspiracy to import in excess of five kilograms of

cocaine in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B), and 963.

Ramirez was sentenced to imprisonment for 240 months, to be
2

followed by five years supervised release. Ramirez's plea

agreement provided that he "waive[d] the right to appeal the

sentence (or the manner in which it was determined) on the grounds

set forth in Title 18, United States Code, Section 3742; except,

[Ramirez] retains his right to appeal any sentence departure above

his applicable sentencing guideline calculation as determined by

the Sentencing Court." 

Ramirez subsequently filed a motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. He alleged

that, (1) he had received ineffective assistance of counsel because

his counsel incorrectly informed him that he could appeal his

sentence under the plea agreement and because his counsel failed to

file a notice of appeal; (2) his guilty plea was rendered unknowing

and involuntary due to counsel's ineffective assistance; and (3) he

was denied the right to appeal. 

After conducting an evidentiary hearing, the district court

determined that Ramirez had made an informed and voluntary waiver

of his right to appeal and that he did not receive ineffective

assistance of counsel. The district court thus denied Ramirez's §

2255 motion. Ramirez filed a timely notice of appeal from the

district court's judgment. 

OPINION

Ramirez argues that he did not knowingly and voluntarily waive

his right to appeal his sentence, and contends that his guilty plea

was thus rendered involuntary. Ramirez alleges that his attorney

informed him that he had the right to appeal from the district
3

court's decision not to grant him a reduction for acceptance of

responsibility. 

"[A] defendant may, as part of a valid plea agreement, waive

his statutory right to appeal his sentence." United States v.

Melancon, 972 F.2d 566, 568 (5th Cir. 1992). To be valid, a

defendant's waiver of his right to appeal must be informed and

voluntary. United States v. Portillo, 18 F.3d 290, 292-93 (5th

Cir.), cert. denied, 115 S. Ct. 244 (1994).

In United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992),

cert. denied, 113 S. Ct. 2457 (1993), this Court refused to enforce

a waiver because, inter alia, the district court had not

specifically addressed whether the defendant understood the

consequences of waiving her right to appeal. In Portillo, however,

the court later held that:

when the record of the Rule 11 hearing clearly indicates

that a defendant has read and understands his plea

agreement, and that he raised no question regarding a

waiver-of-appeal provision, the defendant will be held to

the bargain to which he agreed, regardless of whether the

court specifically admonished him concerning the waiver

of appeal. 

18 F.3d at 293. We distinguished Baty because the defendant in

Baty was obviously confused regarding the waiver of her right to

appeal. 

Ramirez's plea agreement contains a waiver-of-appeal provision

which states:

The defendant is aware that Title 18, United States Code,

Section 3742 affords a defendant the right to appeal the

sentence imposed. Knowing that, the defendant waives the

right to appeal the sentence (or the manner in which it

was determined) on the grounds set forth in Title 18,

United States Code, Section 3742; except, defendant
4

retains his right to appeal any sentence departure above

his applicable sentencing guideline calculation as

determined by the Sentencing Court.

The agreement further provides that,

[i]n agreeing to this waiver, the defendant is aware that

a sentence has not yet been determined by the Court. The

defendant is also aware that any estimate of the probable

sentencing range under the sentencing guidelines that the

defendant may have received from the defendant's counsel,

the United States or the Probation Office, is a

prediction, not a promise, and is not binding . . . .

The United States does not make any promise or

representation concerning what sentence the defendant

will receive. Realizing the uncertainty in estimating

what sentence the defendant will ultimately receive, the

defendant knowingly waives the right to appeal the

sentence, except for as provided for above, in exchange

for the concessions made by the United States in this

plea agreement.

At his rearraignment, Ramirez testified that he understood the

terms of the plea agreement and that no one had made "any other or

different promise[s] to [him] of any kind . . . in order to get

[him] to plead guilty." He raised no question regarding the

waiver-of-appeal provision. Although Ramirez argues that his

limited understanding of the English language is the reason he

responded as he did at his rearraignment, the district court found

"no credible evidence" to support this contention. 

At the evidentiary hearing on Ramirez's § 2255 motion,

Ramirez's trial counsel, Russell Henderson, testified that he had

reviewed each paragraph of the plea agreement with Ramirez, that he

had made an effort "to make sure" that Ramirez understood the plea

agreement, and that Ramirez had indicated to him that he understood

the terms of the plea agreement. Henderson testified that he

"absolutely believed that [Ramirez] understood everything that was
5

written in the plea agreement," and that he "had no doubt that

[Ramirez] understood what was written as far as the plea agreement

is concerned." Henderson further testified that he reviewed with

Ramirez the waiver-of-appeal provision contained in the plea

agreement and that he explained to Ramirez the meaning of that

provision, including the meaning of an upward departure. Henderson

stated that Ramirez never indicated to him that he did not

understand the plea agreement, nor did he express any reservations

concerning the waiver-of-appeal provision. Henderson further

stated that he did not remember ever telling Ramirez that Ramirez

could appeal his sentence if the district court failed to grant him

a reduction for acceptance of responsibility. 

Ramirez testified at the evidentiary hearing that Henderson

had explained the plea agreement to him "paragraph by paragraph,"

including the waiver-of-appeal provision. Ramirez further

testified that Henderson had also informed him that he could appeal

if the district court refused to grant a three-level reduction for

acceptance of responsibility. Ramirez testified that such an

appeal "seem[ed] to differ from the terms of the plea agreement,"

so he questioned Henderson about it. Henderson "said that he was

going to do something." However, in a motion for appointment of

counsel, filed by Ramirez after he was sentenced but prior to the

filing of his § 2255 motion, Ramirez stated that he had been "told

by his previous court-appointed attorney that he did not have the

right to appeal his sentence." 
6

The district court found credible Henderson's testimony that

he did not tell Ramirez that Ramirez could appeal from the lack of

a downward adjustment by the district court. This Court must give

credence to the credibility choices of the district court unless

they are clearly erroneous. United States v. Bass, 10 F.3d 256,

258 (5th Cir. 1993).

The record and the district court findings demonstrate that

Ramirez read and understood his plea agreement, that his counsel

fully explained the waiver-of-appeal provision to him, and that

Ramirez was advised that he could not appeal his sentence. See

Portillo, 18 F.3d at 293. Further, Ramirez raised no question

regarding the waiver-of-appeal provision. Thus, Ramirez's waiver

of his right to appeal was informed and voluntary. 

Ramirez also argues that he received ineffective assistance of

counsel because his attorney failed to file a notice of appeal.

Ramirez contends that he informed his attorney that he wished to

appeal his sentence. 

The failure of counsel to perfect an appeal upon request of

his client may constitute ineffective assistance of counsel. See

United States v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993).

Counsel cannot be considered ineffective, however, for failing to

perfect an appeal, the right to which has been waived. See United

States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). As discussed

above, Ramirez's waiver of his right to appeal was informed and

voluntary. 
opin\95-20121.opn

7

Ramirez nevertheless argues that regardless of the validity of

the waiver-of-appeal provision, he did not waive his right to

challenge the Rule 11 proceedings on appeal, and that his attorney

was thus obligated to file a notice of appeal if Ramirez requested

that he do so. The district court did not make a finding as to

whether Ramirez requested that Henderson file a notice of appeal.

Henderson testified at the evidentiary hearing, however, that

Ramirez never requested that he file an appeal. Henderson stated

that had he been requested to file an appeal, he would have done so

and then filed a motion to withdraw from the case. Henderson

further testified, "I was not asked to do an appeal insofar as Mr.

Ramirez is concerned or any member of his family, including his

wife. I would have remembered that." Nor has Ramirez ever

asserted that he asked Henderson to appeal anything other than the

sentence. Ramirez's argument that his counsel was ineffective for

failing to file a notice of appeal is thus without merit.

AFFIRMED