United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10328

____________

United States of America, 

Plaintiff—Appellee, 

versus

Emmanuel Nicholas Rosa, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 5:22-CR-95-1 

______________________________

Before Richman, Chief Judge, and Graves and Wilson, Circuit 

Judges.

Per Curiam:*

This case concerns whether the district court erred in setting an 

assessment payment schedule as part of Emmanuel Rosa’s conditions of

supervised release and whether Rosa waived his right to appeal that aspect of 

his sentence. Rosa signed a plea agreement that contained an appeal waiver 

and then pled guilty to one count of receiving and distributing child 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

April 12, 2024

Lyle W. Cayce

Clerk

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No. 23-10328

2

pornography. The district court sentenced Rosa to 240 months of 

imprisonment and ordered him to pay assessments of $10,000 under 

18 U.S.C. § 2259A and 18 U.S.C. § 3014 ($5,000 under each statute). 

Rosa now contends the district court erred by ordering simultaneous 

payment of the unpaid balance of these assessments during his period of 

supervised release, asserting that the court could not order him to pay the 

§ 3014 assessment until he has completed payment under § 2259A. The 

Government counters that Rosa waived his right to appeal these assessments

and payment schedule but, even if not, Rosa fails to show any plain error that 

affected his substantial rights. We conclude Rosa waived his right to appeal 

the assessments and the payment schedule and dismiss this appeal. 

I.

Rosa pled guilty to violating 18 U.S.C. §§ 2252A(a)(2) & (b) by 

receiving and distributing child pornography. His plea agreement contained 

several relevant sections. Paragraph 3, titled “Sentence,” reads:

3. Sentence: The minimum and maximum penalties the Court 

can impose include:

. . . 

f. an assessment, pursuant to 18 U.S.C. § 2259A, for no more 

than $35,000 for offenses occurring on or after December 7, 

2018; 

g. if the Court finds the defendant is not indigent, an additional 

mandatory special assessment of $5,000 must be imposed 

pursuant to 18 U.S.C. § 3014;[1]

. . . .

_____________________

1 These are in addition to a separate $100 “mandatory special assessment” that is 

not at issue in this case. 

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Paragraph 6, titled “Mandatory special assessment,” again delineates these 

two assessments and the statutory parameters governing their imposition. 

Paragraph 7, “Defendant’s Agreement,” orders “that any financial 

obligation imposed by the Court . . . is due and payable immediately” and

emphasizes Rosa’s “continuing obligation to pay in full as soon as 

possible . . . .” Finally, Paragraph 12 contains an appeal waiver: “[Rosa] 

waives [his] rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to 

appeal the conviction, sentence, fine and order of restitution or 

forfeiture . . . .”

After pleading guilty but prior to sentencing, Rosa received his presentence investigation report (PSR). The PSR recommended as a condition 

of his supervised release that if any part of the § 2259A or § 3014 assessments 

remained unpaid at the start of his supervised release, Rosa must “make 

payments on such unpaid balance beginning 60 days after release from 

custody at the rate of at least $100 per month until the assessment is paid in 

full.” Rosa also received and reviewed his supervised release conditions, 

which adopted this proposed condition. He did not object to the PSR or 

conditions of supervised release, instead stating “the defense ha[d] reviewed 

the PSR, [and] [saw] no meritorious objections . . . .”

At sentencing, Rosa confirmed he had no objections to the PSR. The 

district court ordered Rosa, inter alia, to pay $5,000 at the rate of $200 per 

month for each assessment ($10,000 total, payable $400 per month).2 Rosa 

acknowledged he would pay “[a] total of 400 a month” for the “separate” 

assessments.

_____________________

2 The Government acknowledges there is a discrepancy between the oral 

pronouncement and written judgment as to how much Rosa must pay each month while on 

supervised release. However, this is not at issue on appeal. 

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Rosa now appeals the assessment payment schedule and requests that 

this court modify it. 

II. 

We review de novo whether an appellate waiver bars an appeal. United 

States v. Strother, 977 F.3d 438, 442 (5th Cir. 2020). Doing so, we consider 

“whether the waiver was knowing and voluntary, and whether, under the 

plain language of the plea agreement, the waiver applies to the circumstances 

at issue.” Id. (internal citations and punctuation omitted). Rosa does not 

contest that he knowingly and voluntarily signed the plea agreement. The 

case turns, then, on whether the plain language of Rosa’s appeal waiver

applies to “the circumstances at issue,” the assessment repayment schedule.

We conclude it does. The plea agreement plainly shows that the 

parties considered the assessments, and by extension their payment 

schedule, to be part of Rosa’s sentence. Rosa plainly waived his right to

appeal the sentence, and thus the assessments and the payment schedule.

3

 

Rosa admits that “sentence” “could encompass Rosa’s claimed error 

in isolation,” but contends that, contextually, it “cannot bear that 

construction.” He argues that “[t]he plea agreement’s plain language 

compels an interpretation of ‘sentence’ that excludes monetary penalties 

such as fines and restitution.” While Rosa concedes that the assessments are 

included under the plea agreement’s “Sentence” paragraph, he contends 

that reading “sentence” to cover the assessments would render the phrase 

_____________________

3 The Government makes alternative arguments that the assessments and their 

payment schedule are encompassed by the term “fines” or are contained within the 

conditions of supervised release. We do not address these contentions because we 

conclude that the assessments are part of the sentence. 

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“fine and order of restitution or forfeiture” in his appeal waiver 

“meaningless.”

To confect this reading, Rosa compares the language in Paragraph 3—

“Sentence”—to that in Paragraph 12—the appeal waiver. The “Sentence” 

paragraph includes potential assessments, fines and restitution that might be 

imposed upon Rosa in the district court’s discretion. The appeal waiver 

states that Rosa “further waives [his] right to contest the conviction, sentence, 

fine and order of restitution or forfeiture . . . .” So, in Rosa’s view, his 

“sentence” cannot subsume “fines” and “restitution” in Paragraph 3 while 

those terms are enumerated separately in Paragraph 12. Otherwise, “fine 

and order of restitution” would be “meaningless.” Rosa asserts that the 

term “sentence” is at least ambiguous and urges us to “turn ‘from the 

language of the contract’ to the ‘surrounding circumstances.’” Ultimately, 

Rosa urges that the ambiguity dictates a construction against the 

Government and a finding that he did not waive his right to appeal the 

assessment payment schedule.

The Government responds that the assessments, and by extension 

their payment schedule, are plainly included in Rosa’s “sentence.” For 

support, the Government cites United States v. Madrid, 978 F.3d 201 (5th Cir. 

2020). In Madrid, this court determined that the plea agreement at issue 

“addressed terms regarding restitution and special assessments, and [the 

defendant] expressed a clear understanding of his right to appeal and agreed 

to that waiver.” Id. at 205. Moreover, the Madrid district court had 

“confirmed that [the defendant] read, reviewed with his counsel, and 

understood the terms of the plea agreement, including the appeal waiver 

provision and that the other charges that would be dropped.” Id. This court 

held the appeal waiver was enforceable and applied to bar the defendant’s 

appeal. Id.

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While Rosa counters that the appeal waiver at issue here differs 

substantially from the one in Madrid, that case is at least instructive. As in 

Madrid, we must consider “the parties’ intent at the time the agreement was 

executed, as determined from the language of the contract and the 

surrounding circumstances.” 978 F.3d at 205. And we may not “rewrite the 

terms of a plea agreement entered into willingly and knowingly; instead, the 

court is only responsible for ensuring that freely negotiated terms of plea 

agreements are enforced.” Id. (internal citations and quotations omitted). 

Applying these principles, Rosa has clearly waived his right to appeal his 

sentence, and that includes the assessments and their payment schedule.

For starters, Rosa admits that “[t]he term [sentence] . . . could 

encompass [his] claimed error . . . .” Moreover, the assessments are 

included in the “Sentence” paragraph of the plea agreement. Paragraph 7 of 

the agreement clearly outlines Rosa’s obligation to pay the assessments 

(immediately). Rosa was provided his PSR and proposed conditions of 

supervised release, which both included proposed payment schedules, prior 

to sentencing. At sentencing Rosa confirmed he understood he would pay 

“[a] total of 400 a month” for the “separate” assessments. Finally, he stated 

before and during sentencing that he had no objections to the PSR or the 

proposed assessment payment schedule.

Rosa’s contention that his “sentence” must be distinct from the 

assessments because the appeal waiver separately enumerates the “sentence, 

fine and order of restitution or forfeiture” is unpersuasive. If anything, the 

more specific language in the appeal waiver cuts against his position because 

that language sweeps in the assessments whether they are part of the 

“sentence,” or are “fines” or “restitution.” Regardless, reading the 

paragraphs of the plea agreement together, the parties clearly intended for 

these assessments, including when they would be paid, to be a part of Rosa’s 

sentence, and for them to be covered by the appeal waiver. Rosa’s attempts 

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to create ambiguity are unavailing.4 “By challenging [the terms of the 

agreement] of which he was repeatedly admonished, [Rosa] is attempting to 

circumvent the waiver-of-appeal provision contained in the negotiated plea 

agreement.” Madrid, 978 F.3d at 205 (citing United States v. Rivas-Lopez, 

678 F.3d 353, 356-57 (5th Cir. 2012)). He may not do so.

III.

It is clear that the assessments and their payment schedule set by the 

district court were part of Rosa’s sentence. Rosa expressly confirmed at 

sentencing that he understood that during his supervised release, he would 

owe $400.00 per month until the assessments were fully paid. And Rosa 

plainly waived his right to contest his sentence on appeal. “[T]he court 

is . . . responsible for ensuring that freely negotiated terms of plea agreements 

are enforced” and not “re-writ[ten].” Id.

APPEAL DISMISSED.

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4 Because the plea agreement is unambiguous regarding the intent of the parties, 

we decline Rosa’s invitation to consider the “surrounding circumstances,” i.e., the 

“statutory framework at the backdrop of the parties’ negotiation[s].”

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