Case: 14-11305      Document: 00513363469         Page: 1    Date Filed: 02/01/2016




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

                                    No. 14-11305                                    FILED
                                  Summary Calendar                            February 1, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
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 purpose. As part of the
plea agreement, Padron waived his rights 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. As


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 14-11305

pertinent to the instant appeal, Padron reserved the right to appeal directly a
sentence exceeding the statutory maximum or an arithmetic error at
sentencing. The district court sentenced Padron to 87 months of imprisonment
and ordered the sentence to run consecutively 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 fraud
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 the
appeal waiver.
      We review the validity of an appeal waiver de novo. See United States v.
Baymon, 

, 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 whether the
waiver applies to the circumstances at hand, based on the plain language of
the agreement. United States v. Bond, 

, 544 (5th Cir. 2005).
      Even assuming Padron could appeal his sentence based on the
reservation of the right to appeal a sentence 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 

; United States v. Smith, 404 F. App’x



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                                  No. 14-11305

884, 886-87 (5th Cir. 2010). In this matter, the 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 imposition 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 

.
      AFFIRMED.




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