IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20043

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCUS EUGENE JACOBS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges:

PER CURIAM:

Federal prisoner Marcus Eugene Jacobs pled guilty to one count of

possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea

agreement, Jacobs generally waived his right to appeal his sentence but

preserved his right to appeal an upward departure from the Sentencing

Guidelines not requested by the Government. At sentencing, the district court

imposed an upward variance from the Guidelines not requested by the

Government. Jacobs now contends that the upward-departure exception to the

waiver allows him to challenge his sentence on appeal. Because sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

March 15, 2011

Lyle W. Cayce

Clerk

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No. 10-20043

departures are distinct from sentencing variances, we conclude that the waiver

bars this appeal and grant the Government’s motion to dismiss.

I.

Jacobs pled guilty to one count of possessing stolen mail in violation of 18

U.S.C. § 1708. In exchange for several concessions from the Government, Jacobs

agreed to waive his right to appeal his sentence. In pertinent part, the waiver

of appeal provides:

The defendant waives the right to appeal the sentence imposed or

the manner in which it was determined. The defendant may appeal

only (a) the sentence imposed above the statutory maximum; or (b)

an upward departure from the Sentencing Guidelines, which had

not been requested by the United States as set forth in Title 18

U.S.C. § 3642(b).

At the Rule 11 hearing, the district court specifically discussed the waiver-ofappeal provision with Jacobs. The court accurately explained that Jacobs was

waiving his right to appeal anything about his sentence unless one of the two

exceptions applied. The court also explained that Jacobs’s sentence had not yet

been determined, that the court was not bound by the Government’s sentencing

recommendation, and that Jacobs would not be able to change his plea even if

the court imposed a longer sentence than Jacobs anticipated. Jacobs stated on

the record that he had read and understood the terms of his plea agreement,

that he wished to give up the rights he was waiving, and that no one had forced

or threatened him to plead guilty.

At sentencing, the district court calculated the advisory Guidelines

sentencing range as four to ten months. The Government recommended a

sentence of seven months. However, the district court opted to vary upwardly

under 18 U.S.C. § 3553(a). Citing Jacobs’s extensive criminal history, the

1

 The district court described its decision as an “upward departure,” but it cited to 18 1

U.S.C. § 3553(a)(1) in doing so and later clarified in the Statement of Reasons that it was

imposing a sentence outside the advisory sentencing-guidelines system, not departing from

the advisory guideline range for reasons authorized by the guidelines themselves.

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failure of prior sentences to deter Jacobs from further criminal conduct, a high

risk of recidivism, and the need to protect the public, the district court sentenced

Jacobs to thirty-six months in prison. On appeal, Jacobs seeks to challenge the

reasonableness of a sentence that is 260 percent longer than the high end of the

Guidelines range.

II.

We determine de novo whether the waiver-of-appeal provision in Jacobs’s

plea agreement bars this appeal. A defendant may waive his statutory right to

2

appeal as part of a valid plea agreement, “provided (1) his or her waiver is

knowing and voluntary, and (2) the waiver applies to the circumstances at hand,

based on the plain language of the agreement.”

3

For a waiver of appeal to be knowing and voluntary, “[a] defendant must

know that he had a ‘right to appeal his sentence and that he was giving up that

right.’” The defendant also must understand the consequences of the waiver.

4 5

The defendant’s waiver is unknowing and involuntary where the district court

explains the terms of the appellate waiver incorrectly or not at all. If the

6 7

district court accurately explains the terms and consequences of the waiver of

See, e.g., United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).

2

United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006). 

3

United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting United States v. 4

Melancon, 972 F.2d 566, 567 (5th Cir. 1992)).

United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992) (“A defendant’s waiver of her 5

right to appeal is not informed if the defendant does not know the possible consequences of her

decision.”).

See, e.g., United States v. Delgado-Ramirez, 236 F. App’x 983, 984 (5th Cir. 2007) (per 6

curiam) (unpublished).

FED. R. CRIM. P. 11(b)(1)(N); see, e.g., United States v. Robinson, 187 F.3d 516, 518 7

(5th Cir. 1999) (“[A] defendant’s waiver of her right to appeal deserves and, indeed, requires

the special attention of the district court.’” (quoting Baty, 980 F.2d at 979)).

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appeal and the defendant states on the record that he understands them, the

defendant’s later contention that he did not really understand will not invalidate

the waiver. Here, Jacobs concedes that he signed the waiver knowingly and

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voluntarily, and the record of the Rule 11 hearing indicates this concession was

a wise one.

To determine whether a waiver of appeal applies to the circumstances at

hand, we ascertain the ordinary meaning of the waiver provision. We do so

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using “normal principles of contract interpretation,” subject to the limitation

10

that “[g]iven the significance of the rights they involve, we construe appeal

waivers narrowly, and against the government.” While “any ambiguity must

11

be construed in favor of the defendant’s right to appeal,” we will not read

12

ambiguity into an agreement in which none readily manifests itself: “In the

absence of evidence that the parties to the agreement intended [] a specialized,

non-natural definition, we apply the term’s usual and ordinary meaning.”

13

Here, the relevant portion of the waiver-of-appeal provision in Jacobs’s

plea agreement only allows him to appeal an “upward departure” not requested

by the Government. “‘Departure’ is a term of art under the Guidelines and

refers only to non-Guidelines sentences imposed under the framework set out in

See, e.g., United States v. Smith, No. 09-50343, 2010 WL 5185499, at *2 (5th Cir. Dec. 8

15, 2010) (per curiam) (unpublished); United States v. De Cay, 359 F. App’x 514, 515–16 (5th

Cir. 2010) (per curiam) (unpublished).

See, e.g., United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (per curiam) (“The 9

language in the appellate waiver must be afforded its plain meaning in accord with the intent

of the parties at the time the plea agreement was executed.”).

United States v McKinney, 406 F.3d 744, 746 (5th Cir. 2005); see also United States 10

v. Bond, 414 F.3d 542, 545 (5th Cir. 2005) (“We must interpret the plea agreement like a

contract, in accord with what the parties intended.”).

Palmer, 456 F.3d at 488.

11

United States v. Harris, 434 F.3d 767, 770 (5th Cir. 2005).

12

Bond, 414 F.3d at 545.

13

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the Guidelines.” The Guidelines set out a three-part framework for the

14

imposition of sentences: the district court (1) calculates the advisory sentencing

range; (2) considers the specific offender characteristics and grounds for

departure enumerated in the Guidelines; and (3) weighs the applicable factors

in 18 U.S.C. § 3553(a) as a whole. The district court’s authority to impose a

15

departure emanates from 18 U.S.C. § 3553(b)(1) and, in turn, in Chapter 5,

Part K of the Guidelines. Under Federal Rule of Criminal Procedure 32(h), the

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district court cannot impose a departure unless it first notifies the parties that

it is contemplating doing so. When the district court imposes an upward

17

departure, it must explain its reasons for doing so in Section V of the standardform Statement of Reasons.

By contrast, if after completing the Guidelines’ three-step process the

district court “imposes a sentence that is outside the guidelines framework, such

a sentence is considered a ‘variance’.” The district court’s authority to impose

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a variance is discretionary and stems from 18 U.S.C. § 3553(a). Rule 32(h)’s

19

Irizarry v. United States, 553 U.S. 708, 714 (2008). 

14

See U.S. SENTENCING GUIDELINES MANUAL § 1B1.1(a)–(c) (2010).

15

See id. § 5K2.0(a). 16

Irizarry, 553 U.S. at 709–10 (“[B]efore the court may depart from the applicable 17

sentencing range on a ground not identified for departure either in the presentence report or

in a party’s prehearing submission, the court must give the parties reasonable notice that it

is contemplating such a departure.” (quoting FED. R. CRIM P. 32(h))).

 U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. background (2010).

18

See, e.g., United States v. Herrera-Garduno, 519 F.3d 526, 530–31 (5th Cir. 2008).

19

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notice requirement does not apply to variances. And the district court explains

20

its reasons for imposing a variance in Section VI of the Statement of Reasons.

In short, an upward departure and an upward variance are not one and

the same. The plea agreement applies only to “departures,” and the term

“departure” has an ordinary, well-settled meaning in the sentencing context.

That meaning does not extend to variances such as the one the district court

imposed here. Jacobs does not argue that the parties intended the term

“departure” to carry an atypical or specialized meaning when they included it in

his plea agreement. The rule that we construe plea agreements narrowly and

against the Government does not authorize us to ignore the settled meanings of

the terms used in such agreements.

21

Jacobs contends that the upward-departure exception applies here because

it allows him to appeal “upward departures from the Guidelines,” which he says

actually describes variances, while departures are best described as “upward

departures under the Guidelines.” This distinction is simply not supported by

the controlling statutes and precedent. In addition, Jacobs’s reading would

22

Irizarry, 553 U.S. at 716; United States v. Mejia-Huerta, 480 F.3d 713, 722–23 (5th 20

Cir. 2007). See generally United States v. Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006)

(“Booker contemplates that the district court will impose a discretionary sentence after

consideration of the advisory Guidelines, the grounds raised by counsel, the defendant’s

allocution, victim statements, other evidence, and the factors set forth in § 3553(a). Booker

does not contemplate that the court will somehow arrive at its sentence prior to sentencing,

and requiring advance notice of ‘any ground’ beyond the factors set forth in § 3553(a) would

undoubtedly prove to be unworkable.” (footnote and internal citation omitted)).

Cf. United States v. Guinyard, 149 F. App’x 279, 281 (5th Cir. 2005) (per curiam)

21

(unpublished) (holding that a waiver-of-appeal provision that contained the same two

exceptions as Jacobs’s did not authorize the defendant to appeal the fact that his sentence was

imposed under the pre-Booker mandatory Guidelines regime); United States v. Escobar, 78 F.

App’x 935, 937 (5th Cir. 2003) (unpublished) (holding that a waiver-of-appeal provision that

contained the same two exceptions as Jacobs’s did not authorize the defendant to appeal the

district court’s decision to apply a six-level sentence enhancement). 

In fact, Jacobs’s position most closely mirrors the position advocated by the 22

dissenting Justices—and rejected by the majority—in Irizarry. See 553 U.S. at 718 (Breyer,

J., dissenting).

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have the absurd consequence of allow to him to appeal variances—since they are

departures “from” the Guidelines—but not departures, since the plea agreement

does not contain a provision allowing appeals from departures “under” the

Guidelines. We find it wholly implausibly that the parties intended this outcome

when they chose to use the term “departure” in the waiver provision.

If the parties had intended to allow Jacobs to appeal any sentence that

exceeded the high end of the Guidelines’ recommended sentencing range, they

could have drafted the waiver of appeal to say so. Jacobs might now wish that

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the plea agreement were worded differently, but “an agreement should be

enforced as written, without regard to whether the parties contracted wisely.”

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We hold that the upward-departure exception to Jacobs’s waiver of appeal did

not authorize him to appeal the upward variance he received at sentencing.

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III.

See United States v. Jackson, 523 F.3d 234, 242 n.5 (3d Cir. 2008) (“Waivers

23

frequently contain provisions allowing a defendant to appeal if . . . there is an erroneous

upward departure, an unreasonable upward variance, or the sentence unreasonably exceeds

the advisory Guidelines range . . . .”); see also, e.g., United States v. Mateo, No. 10-11165, 2011

WL 411438, at *1 (11th Cir. Feb. 9, 2011) (per curiam) (unpublished) (“The plea agreement

contained a sentence appeal waiver that waived Mateo’s right to appeal his sentence unless

the sentence . . . is the result of an upward departure and/or a variance from the guideline

range that the Court establishes at sentencing.” (internal quotation marks omitted)); United

States v. Shawaka, No. 09-4580, 2011 WL 288524, at *4 (4th Cir. Jan. 31, 2011) (per curiam)

(unpublished); United States v. McCarty, 612 F.3d 1020, 1024 (8th Cir.), cert. denied, 131 S.

Ct. 673 (2010); United States v. Ali, 384 F. App’x 165, 167 (3d Cir. 2010) (unpublished).

Xtria LLC v. Tracking Systems, Inc., 345 F. App’x 940, 944 (5th Cir. 2009) 24

(unpublished) (citation, internal quotation marks, and brackets omitted).

The Eleventh Circuit has interpreted a waiver of appeal allowing an appeal from an 25

upward departure to also allow an appeal from an upward variance. See United States v.

Manuel, 208 F. App’x 713, 716 n.1 (11th Cir. 2006) (per curiam) (unpublished). However, its

decision rested on its determination that the defendant’s waiver was not knowing and

voluntary. Id. This Circuit’s precedent on when a waiver of appeal is knowing and voluntary

forecloses a similar determination in this case. See supra notes 4–8 and accompanying text. 

Moreover, Manuel was decided almost two years before the Supreme Court’s decision in

Irizarry, which solidified the distinction between a variance and a departure. In light of that

intervening precedent, we find the reasoning of Manuel inapplicable.

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For the reasons discussed above, IT IS ORDERED that the appellee’s

opposed motion to dismiss this appeal is GRANTED. IT IS FURTHER

ORDERED that the appellee’s alternative motion to extend time to file its brief

is DENIED AS MOOT.

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