court’s application of the Guidelines was illegal. Like Brown, Bolinger claimed that his waiver was ineffective because his plea agreement specified that he would be sentenced “under the guidelines.” Id. at 480. The Bolinger court rejected that argument, reasoning that “[t]he plain meaning of the plea agreement is that Bolinger waived his right to appeal the sentence ... unless he received a term of incarceration in excess of 36 months.” Id. The court explained that “focusing exclusively on the ‘under the guidelines’ language, ignores the plain meaning of the plea agreement and fails to account adequately for the express waiver of the section 3742 appeal right.” Id. at 480 n. 1. These words are equally applicable here. See also United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995) (<HOLDING>). Nor, contrary to Brown’s suggestion, does the
holding that an express waiver of the right to appeal the sentence was invalid because the trial court had failed properly to advise the defendant and that the defendant therefore did not waive his right to appeal the legality of his sentence holding that an appeal waiver is valid if it is the result of a knowing and intelligent decision to forgo the right to appeal holding that waiver of right to appeal sentence unless its was an upward departure barred appeal of sentence within guidelines range holding that if an express appeal waiver does not preclude a challenge to the sentence as unlawful then the covenant not to appeal becomes meaningless holding that a failure to file an appeal is within the scope of the waiver because the failure does not undermine the validity of the plea or waiver