### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-40212 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSEMEL HERRERA-DELGADILLO, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:12-CR-602-1

Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Josemel Herrera-Delgadillo pleaded guilty pursuant to a plea agreement to one count of possession wit h i n t e n t to distribute m ore than 500 grams of methamphetamine. I n the plea agreement, Herrera-Delgadillo waived the right to appeal her conviction and sentence on all grounds a nd retained only the right to appeal a s e n t e n c e that exceeded the statutory maximum or which resulted from an upward departure not requested by the Government. The district court U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Novem ber 18, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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varied downwardly from the advisory guidelines range and s entenced HerreraDelgadillo to the statutory minimum sentence of 1 20 months of imprisonment. On appeal, H errera-Delgadillo argues f or the first time t h a t t he appeal waiver is ineffective because the district court did not comply with Federal Rule of Criminal Procedure 11(b)(1)(N), which requires the district court to make sure before accepting a guilty plea that the defendant understands the terms of any appellate-waiver provision. She asserts that the district c o u r t d e scribed the waiver only generally and did not advise her adequately about the implications of the w aiver o r the limitations that the waiver imposed o n her appellate rights. Because Herrera-Delgadillo did not specifically object t o the plea colloquy a s it pertains to Rule 1 1(b)(1)(N), o ur review is for plain error only. See U nited States v. Oliver , 630 F.3d 397, 411 (5th Cir. 2011). The record reflects that the Rule 11 p l ea colloquy was sufficient t o ensure that Herrera-Delgadillo understood the terms o f the appeal waiver and that the waiver was knowing and voluntary. See United States v. Gonzalez , 259 F.3d 355, 358 (5th Cir. 2001); O liver , 630 F.3d at 411-12. The district court confirmed that she r ead and understood the plea agreement containing the appeal waiver, and she did n ot raise questions or express confusion about its terms. The prosecutor at rearraignment delineated the terms of the waiver, including the exceptions, and Herrera-Delgadillo averred that the prosecutor’s summary conformed with her u nderstanding of the waiver. The district court separately advised HerreraDelgadillo that she was waiving her right to a ppeal her conviction a nd s entence except under “very limited circumstances” – i.e., the exceptions expressly noted by the p rosecutor a nd contained in the plea a greement that she s tated that she read and understood. Accordingly, Herrera-Delgadillo has not shown any error

w i t h r e g a r d to th e Rule 11 plea colloquy. See Oliver , 6 30 F.3d at 412; Unite d States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005). Herrera-Delgadillo nonet h e l e s s asserts that the a ppeal waiver does not apply because s he seeks to raise an issue that falls within an e xception to the
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waiver. She argues that the district court erroneously determined that she was not entitled to safety-valve r e l i e f p ursuant to U.S.S.G. § 5C1.2, and that the denial of safety-valve relief was tantamount to an u pward departure. H owever, application o f the s afety valve does not i mplicate a d eparture a nd, in this case, the district court denied safety-valve relief at the r equest o f the Government and

o p t e d t o i m p o s e the statutory m inimum sentence after varying downwardly from the guidelines range based upon the sentencing factors in 18 U.S.C. § 3553(a). See § 5C1.2; see also U.S.S.G. § 5G1.1, comment; United States v. Flanagan , 80 F.3d 1 43, 148 n.4 (5th Cir. 1996). Thus, Herrera-Delgadillo’s challenge to the denial of safety-valve relief falls within the terms of the w a iv e r . Se e United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005). Accordingly, the judgment of the district court is AFFIRMED.

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