# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 23

- 40641 Summary Calendar

**____________ United States of America,**  Plaintiff

— Appellee **,**

versus **Alejandro Vazquez -Padilla,**  Defendant

— Appellant

**.**

**______________________________** Appeal from the United States District Court for the Southern District of Texas USDC No. 5:23

- CR

- 76 -1

**______________________________** Before **Graves, Willett,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** ***** Alejandro Vazquez

- Padilla pleaded guilty, pursuant to a written plea agreement, to conspiracy to import and conspiracy to possess with intent to distribute 50 grams of methamphetamine and 500 grams or more of a substance containing a detectable amount of methamphetamine, and the district court sentenced him to 210 months in prison. On appeal, Vazquez

-

**_____________________**

* This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED August 19, 2024

Lyle W. Cayce Clerk Case: 23-40641 Document: 64-1 Page: 1 Date Filed: 08/19/2024No. 23

- 40641

2 Padilla challenges his sentence, arguing that the Government breached the plea agreement by n o t fulfill ing its obligation to advocate for a safety

- valve reduction. Invoking the waiver of appeal provision in Vazquez

- Padilla’s plea agreement, the Government moves for dismissal of the appeal, contending that the waiver is valid and enforceable and precludes Vazquez

- Padilla from challenging his conviction or sentence exc ept where a claim of ineffective assistance of counsel is raised. Vazquez

- Padilla opposes the Government’s motion, arguing that the waiver was not knowing and voluntary in light of the Government’s breach. The validity of an appeal waiver is a question of law that we review de

novo. United States v. Keele , 755 F.3d 752, 754 (5th Cir. 2014). The record indicates that Vazquez

- Padilla read and understood the plea agreement, which contained an “explicit, unambiguous waiver of appeal.” United States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005) . Thus, his appeal waiver was knowing and voluntary. See United States v. Higgins , 739 F.3d 733, 736 (5th Cir. 2014); **Fed. R. Crim. P.** 11(b)(1)(N). The record also reflects that the appeal waiver “applies to the circumstances at hand, based on the plain language of the plea agreement,” Higgins , 739 F.3d at 736, as Vazquez

Padilla’s appellate issue does not fall within the stated exception to the appeal waiver. While a defendant is released from an appeal waiver if the Government has breached the plea agreement, s ee United States v. Gonzalez , 309 F.3d 882, 886 (5th Cir. 2002), the record reveals that the Government complied with all of the terms of the written plea agreement. The Government made only two promises

– to dismiss the remaining counts of the indictment and to move for the additional third point deduction for acceptance of responsibility. The plea agreement did not contain any Case: 23-40641 Document: 64-1 Page: 2 Date Filed: 08/19/2024No. 23

- 40641

3 promises regarding a safety

- valve reduction , and nothing in the record suggests that the terms of the plea agreement had been modified. Accordingly, the Government’s motion for dismissal is **GRANTED** , and the appeal is **DISMISSED**

. Case: 23-40641 Document: 64-1 Page: 3 Date Filed: 08/19/2024