UNITED STATES of America, Plaintiff-Appellee v. Edgar NARVAEZ, Defendant-Appellant.
Nos. 10-50699, 10-50700.
United States Court of Appeals, Fifth Circuit.
Nov. 28, 2011.
Joseph H. Gay, Jr., Assistant U.S. Attorney, Mark Randolph Stelmach, Esq., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee.
Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT, District Judge.*
PER CURIAM:**
Defendant-Appellant Edgar Narvaez appeals his sentences for forgery and conspiracy to commit healthcare fraud, contending that the district court made several sentencing errors. Because we conclude that the appellate waiver in Narvaez‘s plea agreement bars this appeal, we DISMISS it.
I. Facts and Procedural History
The sentencing-related issues in this appeal arise out of two separate criminal incidents involving Narvaez. In the first, a jury convicted Narvaez of forging the signature of a United States bankruptcy judge on a document that purportedly discharged Narvaez from a then-pending bankruptcy proceeding. Narvaez used the forged document to purchase a vehicle. Narvaez received a fifteen-month sentence.
The second incident concerns Narvaez‘s involvement in a fraudulent Medicaid scheme that included Narvaez, his wife, and a third party. Together, they formed and operated Narvaez Family Provider Services (“NFPS“). NFPS eventually obtained a Medicaid provider license and contract by making fraudulent misrepre
A grand jury later indicted Narvaez on ten counts of healthcare fraud and two counts of conspiracy to commit healthcare fraud. Narvaez entered a plea agreement in which he pled guilty to the conspiracy counts. Narvaez also agreed to forfeit over $400,000 in proceeds obtained through the NFPS scheme.
Narvaez‘s plea agreement includes an appeal waiver. In relevant part, it provides, in a section titled “Defendant‘s Waiver of Right to Appeal or Challenge Sentence,” that Narvaez “voluntarily and knowingly waive[d] the right to appeal his sentence on any ground” or “to contest his sentence or the manner in which it was determined in any post-conviction proceeding.” The plea agreement carves out two exceptions to this broad waiver: claims based on ineffective assistance of counsel and claims based on prosecutorial misconduct. Notably, the plea agreement states that Narvaez waived his appeal rights despite “knowing that his sentence ha[d] not yet been determined by the [district court].”
In this appeal, Narvaez raises three broad issues. He argues that the district court improperly used the gross total of Medicaid payments to NFPS to calculate the amount of loss for length-of-sentence and restitution purposes. He also believes that the district court impermissibly ordered his conspiracy sentence to run consecutively with his forgery sentence. As he must for the court to reach these ostensible errors, Narvaez attacks his appeal waiver, contending that it is invalid because the district court failed to ensure that Narvaez knowingly and voluntarily waived his right to appeal.
II. Standard of Review
Courts generally review de novo the preclusive effect of an appellate waiver. See, e.g., United States v. Jacobs, 635 F.3d 778, 780-81 (5th Cir.2011) (citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir.2002) (noting that the issue is a question of law)).1 Just as defendants may waive constitutional rights, they may also waive statutory rights, such as the right to appeal, provided that the waiver is “informed and voluntary.” United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). A defendant‘s understanding of a waiver‘s plain text is relevant to determining a waiver‘s validity, but ultimately “a defendant‘s waiver of [his] right to appeal deserves and, indeed, requires the special attention of the district court.” United States v. Baty, 980 F.2d 977, 979 (5th Cir.1992). Because waiving the right to appeal necessarily entails accepting an “unknown and unannounced“—and therefore potentially erroneous or illegal—sentence, the district court must “[e]nsure that the defendant fully understands [his] right to appeal and the consequences of waiving that right.” Id. Narvaez concedes that, if valid, the appeal waiver forecloses the substantive issues he seeks to raise on appeal.
An unpreserved challenge to the validity of an appeal waiver is reviewed under different standards depending on the nature of the challenge. As we explain more fully below, Narvaez‘s challenge, while couched as one attacking the waiver‘s validity, is in substance an attack on the court‘s conduct of the Rule 11 plea colloquy. See United States v. Cuevas-Andrade, 232 F.3d 440, 446 (5th Cir.2000);
Deficiencies in the Rule 11 colloquy to which no contemporaneous objections are lodged are reviewed for plain error in light of the record as a whole.2 See Vonn, 535 U.S. at 59, 73-76; United States v. Oliver, 630 F.3d 397, 411-12 (5th Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 758, 181 L.Ed.2d 490 (2011) (applying plain-error review to Rule 11(b)(1)(N) challenge and citing Vonn); United States v. Reyes, 300 F.3d 555, 558-59 (5th Cir.2002) (analyzing Rule 11 challenge under plain-error review post-Vonn).3 To show plain error, a defendant must demonstrate that the district court made “(1) ... an error, (2) that is clear and obvious, and (3) that affects his substantial rights.” Reyes, 300 F.3d at 558 (citation omitted). Additionally, “because relief on plain-error review is in the discretion of the reviewing court, a defendant has the further burden to persuade the court that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.‘” Vonn, 535 U.S. at 63 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (alteration in original). “[A] defendant‘s substantial rights are affected if the district court‘s Rule 11 error[ ] ‘may reasonably be viewed as ... a material factor affecting [the defendant‘s] decision to plead guilty.‘” Cuevas-Andrade, 232 F.3d at 443 (quoting United States v. Bachynsky, 934 F.2d 1349, 1360 (5th Cir.1991) (en banc)) (some alterations and omission in original); cf. United States v. Dominguez Benitez, 542 U.S. 74, 84 (2004) (holding, in the context of “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11,” that the defendant “must show a reasonable probability that, but for the error, he would not have entered the plea“).
The Government contends that Narvaez knowingly and voluntarily waived his right to appeal and that the plea colloquy was sufficient, pointing out that the waiver‘s language unambiguously provides notice that, in signing the plea agreement, Narvaez broadly waived his right to appeal almost any aspect of the district court‘s then-unannounced sentence. Narvaez signed that agreement only hours before his rearraignment. There, the district court noted that Narvaez had waived his right to appeal, confirmed that Narvaez had conferred with counsel regarding the Government‘s evidence, and gave Narvaez the opportunity to ask questions.4 Accordingly, the Government argues that the appellate waiver bars Narvaez from pursuing this appeal.
Narvaez urges the court to look past the waiver‘s express language. He argues that even clearly written waivers are unenforceable when a district court takes insufficient steps to apprise a defendant of his waiver‘s contents and consequences. Narvaez also asserts that the district court‘s allegedly generic, passing reference to a nonspecific waiver of “appeal” failed to ensure that he knowingly and voluntarily waived his right to appeal. What is notable is what Narvaez does not say: he does not say that he did not understand his plea agreement. Nor does he contend that he would have done something differently if the district judge had recited some “magic words.” In sum, he does not claim that the district court‘s limited discussion of the waiver somehow impacted his decision to enter the plea agreement. Nor does he contend that he involuntarily waived his appeal rights or did so without understanding the consequences.5
Narvaez‘s attack rests solely upon the district court‘s alleged failure to sufficiently ensure that his waiver was informed and voluntary during the plea colloquy. Counsel for Narvaez, however, did not “raise[] any contemporaneous objections to the district court‘s [ostensible] failure to comply with Rule 11.” Cuevas-Andrade, 232 F.3d at 445-46 n. 3. We thus review for plain error.
Examining the record, we conclude that any defects in the Rule 11 plea colloquy did not affect Narvaez‘s substantial rights. While we agree that the better practice is to ask expressly if the defendant read and understood the plea agreement,6 here the
Critically for our purposes here, the record as a whole demonstrates that Narvaez read and understood his plea agreement and that he failed to raise any questions concerning the appellate waiver. See Vonn, 535 U.S. at 59; United States v. McKinney, 406 F.3d 744, 746 (5th Cir.2005) (citing United States v. Portillo, 18 F.3d 290, 293 (5th Cir.1994)). At most, then, Narvaez complains of a technical Rule 11 deficiency that did not affect his substantial rights. As such, he fails to show plain error. Accordingly, we hold Narvaez to his bargain and conclude that he waived his right to bring this appeal.8
IV. Conclusion
APPEAL DISMISSED.9