United States Court of Appeals

for the Fifth Circuit

No. 21-51045

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Maria Tello, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:17-CR-1493-2

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

Maria Tello pleaded guilty of conspiracy to import a mixture 

containing 500 grams or more of methamphetamine. She moved to withdraw 

her guilty plea, but the district court denied the motion. The court sentenced 

Tello to 262 months of imprisonment and five years of supervised release. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2022

Lyle W. Cayce

Clerk

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She now appeals, challenging the district court’s denial of her motion to 

withdraw her guilty plea and also challenging her sentence. 

A defendant may withdraw a guilty plea after it has been accepted by 

the district court but before sentencing if he shows a “fair and just reason” 

for seeking withdrawal. Fed. R. Crim. P. 11(d)(2)(B). Although Tello’s 

plea agreement includes language waiving her right to appeal her guilty plea, 

the Government does not seek to enforce the waiver as to this issue. See 

United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). We review the 

denial of the motion to withdraw the plea for an abuse of discretion. United 

States v. Strother, 977 F.3d 438, 443 (5th Cir. 2020). In light of the factors set 

forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), Tello 

shows no abuse of discretion by the district court in denying her motion to 

withdraw her plea. See Strother, 977 F.3d at 443-47. Therefore, the denial of 

her motion is affirmed.

Tello also contends that the district court erred in imposing a twolevel enhancement to her offense level based upon her role in the offense. 

The Government argues that Tello’s challenge to her sentence is barred by 

the waiver of appeal provision in her plea agreement. We review de novo 

whether an appeal waiver bars an appeal. United States v. Keele, 755 F.3d 752, 

754 (5th Cir. 2014). First, we consider whether the waiver was knowing and 

voluntary, and second, we consider whether the plain language of the waiver 

applies to the issues to be raised on appeal. United States v. Bond, 414 F.3d 

542, 544 (5th Cir. 2005).

For a waiver to be knowing and voluntary, a defendant must know that 

she had a right to appeal and that she was giving up that right. See United 

States v. McKinney, 406 F.3d 744, 746 & n.2 (5th Cir. 2005). Based on the 

plea agreement and the advice she received at rearraignment, Tello’s waiver 

was knowing and voluntary. See id. Tello generally waived her right to appeal 

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her conviction and sentence, with certain exceptions that do not apply to the 

issue she raises. Based on the plain language of the plea agreement, the

appeal waiver bars her challenge to her sentence. See Keele, 755 F.3d at 754. 

Therefore, this portion of her appeal is dismissed. See Story, 439 F.3d at 230-

31 & n.5.

AFFIRMED IN PART; DISMISSED IN PART.

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