1 District Judge of the Eastern District of Louisiana, sitting

by designation. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-8285

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

NICHOLAS ARTHUR PORTILLO,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

( March 23, 1994 )

Before JONES and DeMO SS, Circuit Judges, and SCHWARTZ 1

, District

Judge.

DeMOSS, Circuit Judge:

A ppellant Portillo was indicted for (1) armed robbery of an

automobile, in violation of 18 U.S.C. § 2119; and (2) use of a

firearm during a crime of violenc e; in violation of 18 U.S.C. §

924(c). Portillo filed a motion to dismiss the indictment or,

alternatively, to compel the government to elect between the two

counts, arguing that sentencing him for both charges would violate

the Double Jeopardy Clause. The district court denied Portillo's2

motion, concluding that Congress intended to cumulatively punish

offenders of both statutes.

Portillo unconditionally pleaded guilty to carjacking.

However, his guilty plea to the gun charge was conditional:

2. The Defendant agrees to plead guilty conditionally

under Fed. R. Crim. P. 11(a)(2) to Count Two of the

instant indictment (using a firearm during violent

crime). Specifically, the Defendant reserves the right

to withdraw his guilty plea on this count only if, upon

appellate review sought by either party, he prevails on

his legal argument that he cannot be convicted and

sentenced on Count Tw o, in addition to being convicted

and sentenced on Count One.

His plea agreement also contained a waiver-of-appeal provision:

13. Except as otherwise provided, the Defendant hereby

expressly waives the right to appeal his sentence on any

ground, including any appeal right conferred by 18 U.S.C.

§ 3742, and the Defendant further agrees not to contest

his sentence in any post-conviction proceeding, including

but not limited to a proceeding under 28 U.S.C. § 2255.

The Defendant, however, reserves the right to appeal the

following: (a) issues specified in Paragraph 2, (b) any

punishment imposed in excess of a statutory maximum, and

(c) any punishment to the extent it constitutes an upward

departure from the guideline range deemed most applicable

by the sentencing court.

Portillo's Presentence Report ("PSR") assessed two criminal

history points for his commitment as a 12-year-old to the Texas

Youth Commission for arson and an additional two points because

Portillo was on "parole" from the Youth Commission at the time he

committed the federal offenses. Portillo objected to the report,

contending that because the juvenile commitment did not involve an

adjudication of guilt, it was n ot a "sentence" as that term is

defined in the guidelines. The district court overruled the3

objection and adopted the PSR's calculation. The district court

sentenced Portillo to consecutive terms of imprison ment on the

carjacking charge and the gun charge.

Portillo appeals his sentence, arguing that cumulatively

punishing him for carjacking and carrying a gun "during and in

relation to any crime of violence" violates double je opardy.

Portillo's double jeopardy argument has been foreclosed by this

court's opinion in United States v. Singleton

, wherei n the court

held that double jeopardy was not offended by cumulative

punishments under both the carjacking statute and the gun statute:

"We are satisfied, however, that Congress has made a sufficiently clear indication of its intent to impose

cu mulative punishments for violations of § 924(c) and all

crimes of violence, including 'carjacking', to satisfy the

requirements of the Double Jeopardy Clause."

No. 93-3479, 1994 WL 71535, * 8,

___ F.3d

___,

___ (5th Cir. March

10, 1994). Portillo's first point of error is therefore denied.

Portillo also contends that the district cour t erroneously

c onsidered his juvenile commitment in calculating his criminal

history score. The government asserts that Portillo has waived the

right to appeal his sentence on this ground, relying on the waiverof-appeal provision of the plea agreement. Portillo responds that

the district court did not specifically admonish him concerning the

waiver-of-appeal provision and that the waiver was uninformed and

thus, invalid.

At the beginning of Portillo's Rule 11 hearing, the court gave

Portillo an opportunity to read over the plea agreement and to have

Portillo's attorney, Mr. Adams, explain it to him. The agreement4

itself, which Portillo signed

- thus representing that he

"understood and agreed to [it] in every respect"

- is a three-page

letter, consisting of 15 consecutively numbered paragraphs. After

Mr. Adams told the court that his client was ready to proceed, the

following colloquy took place:

THE COURT : OKAY, MR. PORTILLO, HAVE YOU HAD A CHANCE

TO GO OVER THAT DOCUMENT?

PORTILLO : YES, SIR.

THE COURT : COMPLETELY? I MEAN, THIS TELLS ME, WHAT

AGREEMENT HAS BEEN WORKED OUT IN YOUR CASE, AND HOW

E VERYTHING IS GOING TO PROCEED. NOW, IS THIS DOCUMENT

ACCURATE? IS THIS WHAT'S GOING TO HAPPEN IN THIS CASE?

IS THIS YOUR UNDERSTANDING OF WHAT'S GOING TO HAPPEN IN

YOUR CASE?

PORTILLO : YES, SIR.

THE COURT : OKAY. MR. ADAMS, ARE YOU FULLY SATISFIED

THAT HIS DOCUMENT SETS OUT THE AGREEMENT TH AT'S BEEN

WORKED OUT, BY YOU, ON BEHALF OF MR. PORTILLO, WITH THE

GOVERNMENT?

MR. ADAMS : YES, YOUR HONOR.

The court proceeded to admonish Portillo concerning the rights

he was forfeiting by pleading guilty. Although the court did not

d irectly address Portillo's waiver of appeal concerning his

sentence, it indirectly mentioned it by exclusion:

THE COURT : DO YOU REALIZE, THAT BY COMING IN HERE

TODAY, AND PLEADING GUILTY, YOU'RE GIVING U P ALL THESE5

RIGHTS I'VE JUST EXPLAINED TO YOU? NO JURY, NO WITNESSES,

NOTHING. Y OU'RE STILL GOING TO HAVE THE RIGHT TO APPEAL

THE CONVICTION, SO THAT IF THERE IS AN IMPROPER CASE, IF

THERE'S ONE TOO MANY CHARGES, IT'S POSSIBLE THAT ONE OF

THESE CHARGES MIGHT BE DROPPED

. BUT, ASIDE FROM THAT,

YOU'RE GIVING UP YOUR RIGHT TO A TRIAL, TO A WITNESS, TO

CONFRONTING THE -- TO -- TRIAL TO A JURY, TO CONFRONTING

THE WITNESSES, ALL THOSE RIGHTS ARE GIVEN UP. DO YOU

UNDERSTAND?

PORTILLO : YES, SIR.

THE COURT : DO YOU STILL WANT TO GO THROUGH WITH THIS

GUILTY PLEA AND GIVE UP THOSE RIGHTS?

PORTILLO : YES, SIR.

To be valid, a defendant's waiver of his right to appeal must

be informed and voluntary. U.S. v. Melancon

, 972 F.2d 566, 567 (5th

Cir. 1992). A defendant must know that he had a "right to appeal

his sentence and that he was giving up that right." Id . at 968.

Portillo's plea agreement informed him of the right to appeal

his sentence and that by entering into the plea agreement, he would

forfeit that right. Nowhere in the record is there any indication

that Portillo did not understand or was confused by the waiver-ofappeal provision. Compare United States v. Baty

, 980 F.2d 977, 978-

79 (5th Cir. 1992) (defendant's obvious confusion regarding the

waiver provision obligated the district court to insu re that

defendant understood her right to appeal and the consequences of

waiving that right). Indeed, the plea agreement was clearly2 Our holding is further supported by the following col loquy

from Port illo's sentencing hearing at which Portillo's attorney

confirmed his and his client's understanding of and intent to honor

the waiver-of-appeal provision:

THE COURT :

. . . [THE PRESENTENCE REPORT] WILL BE

SEALED, AND MADE PART OF THE RECORD. AND SHOULD THERE BE

AN APPEAL, THIS REPORT WOULD BE MADE AVAILABLE FOR

APPELLATE PURPOSES. IS THERE A MOTION BY THE GOVERNMENT

JUST WITH THIS -- JUST THE TWO COUNT?

[GOVERNMENT] : YOUR HONOR, I WOULD JUST LIKE TO NOTE, FOR

THE RECORD THAT THE PLEA AGREEMENT DOES CALL FOR A NO

APPEAL PROVISION. AND APART FROM THAT, YOUR HONOR, I

DON'T BELIEVE THAT THERE IS ANYTHING TO DISMISS.

THE COURT : OKAY.

MR. ADAMS : THAT IS CORRECT, YOUR HONOR. THE PLEA

AGREEMENT HAS BEEN COMPLIED WITH.

THE COURT : OKAY. THERE IS AN APPEAL WITH REGARD TO

THE ISSUE OF THE TWO

-- NOT THE SENTENCE, BUT THERE WILL

BE AN APPEAL WITH REGARD TO WHETHER THE TWO CONVICTIONS

CAN STAND.

MR. ADAMS : THAT'S CORRECT.

[GOVERNMENT] : YES, SIR.

MR. ADAMS : YES. . . .

Earlier in the hearing, Portillo's attorney articulated his desire

to "[have] the plea agreement that was nego tiated," and promised

the court that if it held the government to its obligations under

the agreement, "there's not going to be an appeal on the

sentence[,] and its that simple." We agree with Mr. Adams, it is

"that simple;" Portillo will be held to the terms of the agreement

to which he pleaded.

wjl\opin\93-8285.opn

cwf 6 written and relatively short. Moreover, Portillo confirmed that he

had read the agreement, understood its contents, and wished to

plead guilty. We hold, therefore, that when the record of the Rule

11 he aring 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.

Accordingly, Portillo's s econd point of error is denied, and his

sentence is AFFIRMED. 2wjl\opin\93-8285.opn

cwf 7