### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 11305 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
NICOLAS A. PADRON , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:12

- CR

- 211

Before DAVIS, JONES, and GRAVES, Circuit Judges. PER CURIAM: *
Nicolas A. Padron pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to unlawfully distribute hydrocodone outside the scope of professional practice and without a legitimate medical pur pose. As part of the plea agreement, Padron waived his right s under 28 U.S.C. § 1291 and
18 U.S.C. § 3742 to appeal his conviction and sentence. He also waived his right to challenge his conviction and sentence in any collateral proceeding. A s

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 1, 2016

Lyle W. Cayce Clerk Case: 14-11305 Document: 00513363469 Page: 1 Date Filed: 02/01/2016No. 14

- 11305

2 pertinent to the instant appeal, Padron reserved the right to appeal directly a sentence exceeding the statutory maximum or an arithmeti c error at sentencing. The district court sentenced Padron to 87 months of imprisonment and ordered the sent ence to run consecut ively to a previously imposed 57

- month federal sentence for a healthcare fraud conviction. It also imposed a
two

- year term of supervised release. Padron argues that the district court misapplied U.S.S.G. § 5G1.3 (b) by imposing consecutive sentences because his sentence for the healthcare fr aud conviction arose out of relevant conduct to the instant offense. He contends that the appeal waiver does not prohibit us from considering whether the district court erred in imposing consecutive sentences because the total term of 144 months of imprisonment exceeds the statutory maximum of 10 years of imprisonment for the instant offense and, thus, satisfies the exception in t he appeal waiver. We review the validity of an appe al waiver de novo. See United States v. Baymon , 312 F.3d 725, 727 (5th Cir. 2002). To determine whether an appeal of a sentence is barred by an appeal waiver provision in a plea agreement, we analyze whether the waiver was knowing and voluntary and wheth er the waiver applies to the circumstances at hand, based on the plain language of the agreement

. United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005).
E ven assuming Padron could appeal his sentence based on the reservation of the right to appeal a se ntence in excess of the statutory
maximum , the remaining language of the appellate waiver remains enforceable. We have consistently enforced broad appellate waivers and have declined to examine the correctness of applying a particular Guideline where the defendant has agreed to a general waiver of the right to appeal the
sentence. See Bond , 414 F.3d a t 54 5

- 4 6; United States v. Smith , 404 F. App’x Case: 14-11305 Document: 00513363469 Page: 2 Date Filed: 02/01/2016No. 14

- 11305

3 884, 886

- 87 (5th Cir. 2010 ) . In this matter, t he plea agreement stated that Padron was waiving his right to challenge his sentence under § 3742. Section 3742 authorizes a defendant to file a notice of appeal “if the sentence . . . was imposed as a result of an incorrect application of the sentencing guidelines.” § 3742(a)(2). Padron’s argument regarding the i mposition of consecutive sentences rests solely on the district court’s alleged misapplication of § 5G1.3 (b) . Therefore, regardless of whether the imposition of consecutive sentences amounts to a sentence exceeding the statutory maximum, the appeal waiver is still enforceable because Padron seeks to challenge his sentence under § 3742(a)(2), and, thus, we need not address the merits of Padron’s appeal. See Bond , 414 F.3d at 545

- 46. AFFIRMED

. Case: 14-11305 Document: 00513363469 Page: 3 Date Filed: 02/01/2016