Case: 19-40324      Document: 00515197810         Page: 1    Date Filed: 11/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-40324                        November 13, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS GILBERTO ORTIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:18-CR-141-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Carlos Gilberto Ortiz challenges the sentence imposed by the district
court following his guilty plea convictions for conspiring to possess with intent
to distribute methamphetamine and possession of a firearm in furtherance of
a drug trafficking crime. He claims that the district court erred under U.S.S.G.
§ 5G1.3 in ordering that his sentence on the methamphetamine conspiracy run
consecutively to his anticipated sentences in two pending state criminal cases.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-40324    Document: 00515197810      Page: 2   Date Filed: 11/13/2019


                                 No. 19-40324

Ortiz also raises two challenges to the special conditions of his supervised
release, arguing that the special conditions unconstitutionally delegate judicial
authority to the probation officer and that the special conditions are
unconstitutional because, by requiring him to pay the costs of his participation
in drug treatment and mental health programs, they create the possibility that
he will be imprisoned because he is unable to pay a debt. The Government
seeks summary dismissal of the appeal, asserting that all of Ortiz’s claims are
barred by the appellate waiver provision in his plea agreement.
      We review the validity of an appeal waiver de novo.         United States
v. Baymon, 

, 727 (5th Cir. 2002). The record in this case shows
that the waiver was knowing and voluntary, as Ortiz knew that he had the
right to appeal and that he was giving up that right in the plea agreement. See
United States v. Portillo, 

, 292 (5th Cir. 1994).
      Here, Ortiz waived his right to appeal his sentence “on all grounds,”
reserving only the rights “to appeal any punishment imposed in excess of the
statutory maximum” and to bring a claim of ineffective assistance of counsel.
Although “any ambiguity must be construed in favor of the defendant’s right
to appeal, we will not read ambiguity into an agreement in which none readily
manifests itself.” United States v. Jacobs, 

, 781 (5th Cir. 2011)
(internal quotation marks and footnote citation omitted). Accordingly, we
reject Ortiz’s contention that he would not have reasonably understood that
his broad waiver of appellate rights would apply to the district court’s order
that his federal sentence run consecutively to his state sentences; Ortiz “might
now wish that the plea agreement were worded differently, but an agreement
should be enforced as written, without regard to whether the parties
contracted wisely.” 

(internal quotation marks and footnote citation
omitted).



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    Case: 19-40324     Document: 00515197810     Page: 3   Date Filed: 11/13/2019


                                  No. 19-40324

      As to Ortiz’s constitutional challenges to the conditions of his supervised
release, we have held that “the term ‘sentence’ unambiguously includes
[supervised release] and its conditions as a matter of law.” United States
v. Higgins, 

, 738 (5th Cir. 2014). Here, the challenged supervised
release conditions do not exceed “the upper level of punishment that Congress
has legislatively specified for violations of a statute,” United States v. Cortez,

, 503 (5th Cir. 2005) (internal quotation marks and citation
omitted), nor has Ortiz shown that the challenged conditions violate the
statutory limitations established by 18 U.S.C. § 3583(d) in a way that
constitutes a punishment in excess of the statutory maximum, see 

. Thus, all of Ortiz’s claims are encompassed by his valid waiver of
appellate rights, and the exceptions to the appeal waiver do not apply.
      In view of the foregoing, we enforce the appellate waiver and DISMISS
the appeal as a means of enforcing the Government’s contractual rights under
the plea agreement. See United States v. Story, 

, 230-31 & n.5
(5th Cir. 2006).     The Government’s motion for summary dismissal is
GRANTED, and its alternative motion for an extension of time to file a merits
brief is DENIED.




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