United States v. Exinia

1 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 6, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40516
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL EXINIA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-83-1
--------------------
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:1
Noel Exinia appeals his conviction for conspiracy to possess
with intent to distribute more than 100 pounds of marijuana and
more than 5 kilograms of cocaine. He alleges that the trial court
erred by: granting his request for self-representation on the
morning of the trial, accepting a plea of guilty while Exinia was
supported only by standby counsel, denying a motion for continuance
to obtain counsel, denying a motion to withdraw the guilty plea,
and overruling certain objections to the presentence report. He
also argues, for the first time in his reply brief, that the trial

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court erred by requiring him to wear a stun belt. As a preliminary
matter, Exinia admits that he must overcome a provision of his plea
agreement waiving his right to appeal. Because this waiver was
effective, we dismiss the appeal.
Exinia contends that the waiver of his right to appeal
pursuant to his plea agreement was ineffective for two reasons:
first, because the judge did not correct an ambiguous explanation
of his right to appeal an illegal sentence; and second, because he
did not receive consideration in exchange for his agreement to
plead guilty.
In support of his argument that there is an ambiguity, Exinia
points to an exchange between his standby counsel and the
prosecutor discussing Exinia’s rights under the plea agreement. In
clarifying the agreement, Exinia’s standby counsel asked the court:
“Judge, I would assume that would include the usual caveat that he
would still be able to appeal any unlawful sentence imposed by the
court. Is that right, Mr. Lewis?” Lewis, the prosecutor, responded:
“Any unlawful or illegal sentence above the statutory maximum.” The
court added: “You have a right to appeal that, but that would be
your only right to appeal.” We find no ambiguity. The standby
counsel asked the prosecutor whether Exinia could appeal an illegal
sentence, and the prosecutor clarified that he could appeal an
illegal sentence above the statutory maximum. Moreover, none of
Exinia’s substantive arguments on appeal contend that there has

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2 “An illegal sentence is one not authorized or directed by
law. Stated otherwise, an illegal sentence is one which exceeds
statutory limits, imposes multiple terms of imprisonment for the
same offense, fails to conform to the oral pronouncement of
sentence, is ambiguous, or otherwise violates the constitution or
the law.” 21A AM. JUR. 2D Criminal Law § 823 (2007).
been an illegal sentence.2 The remedy for an ambiguity respecting
the defendant’s right to appeal is to construe that ambiguity in
favor of the defendant, United States v. Harris, 434 F.3d 767, 770
(5th Cir. 2005), and doing so would not allow Exinia to pursue the
issues appealed in this case.
Exinia also contends that the plea bargain was a contract,
made unenforceable by a lack of consideration in exchange for the
plea. General principles of contract law are often applied to
criminal plea agreements. See United States v. Ready, 82 F.3d 551,
558-59 (2d Cir. 1996). We have considered similar issues raised in
the past, but have not expressly held that consideration is
required to support a valid plea bargain. See United States v.
Smallwood, 920 F.2d 1231, 1239 (5th Cir. 1991); Smith v. Estelle,
562 F.2d 1006, 1008 (5th Cir. 1977). Even assuming that
consideration is required, however, Exinia fails to show that it
was illusory. The government here agreed to move for dismissal of
one of the counts pending against Exinia, to refrain from
prosecuting Exinia for other crimes known to the government and
committed between 2003 and 2005, and to recommend a reduction in
his sentence for acceptance of responsibility should he qualify.
Exinia argues that the dismissal of the other pending count
did not, as a practical matter, affect his sentence. However, we

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specifically rejected this argument in Smith, noting that
defendants receive other benefits from a dismissal, such as
improving the defendant’s chances of parole. 562 F.2d at 1008.
Exinia has not disputed that he was not prosecuted for other crimes
committed between 2003 and 2005, as the plea agreement required.
The government argues that numerous other crimes are known to it
from this period, during which Exinia was involved in a drug
trafficking and money laundering operation. While the government
ultimately objected to a reduction for acceptance of
responsibility, arguing that Exinia refused to meet with the
probation department to discuss the case and contradicted his
admissions at re-arraignment, the conditional promise to recommend
a reduction in sentence constitutes consideration under general
contract principles. See United States v. Brunetti, 376 F.3d 93,
95-96 (2d Cir. 2004) (“Faced with a mandatory term of life
imprisonment, Brunetti decided to trade a guilty plea for a chance
at a reduced sentence. An element of risk was part of his
bargain.”).
Because Exinia’s plea agreement waiving the right to appeal
was knowing, voluntary, and enforceable, any appeal in
contravention of the waiver provision should be dismissed. United
States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002). We therefore
DISMISS THE APPEAL.

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