Carmen Castillo Mitchell, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Sonya Leah Heath, Esq., Attorney, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.
CARL E. STEWART, Chief Judge:
Defendant-Appellant Delfino Rodriguez-Estrada (Rodriguez) pleaded guilty to being found in the United States after deportation. The plea agreement contained a waiver provision, whereby Rodriguez agreed to waive his right to appeal. On appeal, Rodriguez challenges the district court's imposition of a sixteen-level enhancement to his sentence pursuant to U.S. Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(A)(ii). He contends that this issue does not fall within the purview of the appeal waiver and, therefore, may be raised on appeal. Because we hold that this issue is encompassed within Rodriguez's appeal waiver, his appeal is DISMISSED.
Rodriguez was charged and eventually pleaded guilty to being found in the United States after deportation, a violation of 8 U.S.C. § 1326(a)-(b). In the plea agreement, Rodriguez agreed to waive his right to appeal.
The plea agreement read, in pertinent part:
The defendant agrees to waive the right to appeal the sentence imposed or the manner in which it was determined on any grounds set forth in Title 18 U.S.C. § 3742 .... The defendant waives the right to contest his/her conviction or sentence by means of any post-conviction proceeding, including but not limited to Title 28, U.S.C. § 2255.
In the presentence report (PSR), Rodriguez was assigned a base offense level of eight. In addition, Rodriguez was assessed a sixteen-level increase under § 2L1.2(b)(1)(A)(ii) for a previous conviction— a 2009 conviction in New Jersey for aggravated assault. He also received a three-level reduction for acceptance of responsibility, resulting in a total offense level of twenty-one. Because he had a criminal history category of III, he had a sentencing guideline range of forty-six to fifty-seven months. While the PSR described the New Jersey conviction as a crime of violence, Rodriguez contested that characterization and the corresponding sixteen-level enhancement.
During the rearraignment, the magistrate judge (MJ) reviewed the plea agreement with Rodriguez. Rodriguez testified that he understood the agreement and that his attorney had read and explained the agreement to him. However, the MJ incorrectly informed Rodriguez that, while he was waiving his right to appeal his conviction and sentence, he retained the right to assert an ineffective assistance of counsel claim and a prosecutorial misconduct claim. Rodriguez responded that he understood the plea agreement. Following the prosecutor's statement of the factual basis for the plea, Rodriguez stated that he wished to reserve his right to object to the characterization of his New Jersey conviction as a crime of violence. The MJ
responded that Rodriguez reserved ...