United States v. Fernandez

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 25, 2004
• Docket: 01-20602
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS December 3, 2002 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 01-20602 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TORIBIO FERNANDEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. H:95-CR-142-15

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Toribio Fernandez appeals his guilty-plea conviction and life

sentence for conspiracy to possess with intent to distribute more

than 1000 kilograms of marijuana. Fernandez acknowledges that in

his written plea agreement he made an otherwise valid waiver of his

right to appeal his sentence, but he contends that the waiver is

without effect because the plea agreement is invalid. He also

asserts that the district court abused its discretion in refusing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. to allow him to withdraw his plea and that the district court

misapplied the Sentencing Guidelines.

Appellant first argues that the plea agreement is invalid as

an unconscionable contract of adhesion, essentially because he

received a life sentence. Even if pleading guilty in the face of

a certain life sentence is unconscionable, Fernandez’s case does

not present that scenario. Rather, the plea bargain into which

Appellant entered included only the risk of a life sentence.

Pursuant to the agreement, the government agreed to recommend a

sentence at the low end of the guidelines range, in addition to

dismissing the other charges against him and foregoing forfeiture

of a ranch Fernandez’s father allegedly owned unless forfeiture was

later justified by new information. Thus, we find no

unconscionable terms in the agreement. Furthermore, the mere fact

that he received a harsher sentence than what he subjectively

expected to receive does not invalidate the agreement.1 Fernandez

was fully informed that he faced a potential life sentence,

depending on the presentence investigation.2 He stated that he

understood that he would not be allowed to withdraw his plea if the

sentence was more severe than he expected. Fernandez has therefore

failed to show that the plea agreement is invalid due to the

1 Daniel v. Cockrell, 283 F.3d 697, 703-04 (5th Cir.), cert. denied, – U.S. –, 2002 WL 1434299 (Oct. 7, 2002). 2 In the plea colloquy, the district court explained to Fernandez that he was susceptible to a sentence anywhere from 10 years to life.

-2- unconscionability of its terms.

Fernandez also contends that the plea was invalid due to an

insufficient factual basis. However, the factual basis appearing

in the record was “sufficiently specific to allow the court to

determine that the defendant’s conduct was within the ambit of that

defined as criminal.”3 At the rearraignment, the government

described the conspiracy to distribute more than 1000 kilograms of

marijuana and stated that Fernandez helped to transport marijuana

and to buy a vehicle used for transporting it. Appellant

corroborated these statements under oath. The testimony

establishes that Fernandez participated in the crime to which he

pleaded–a conspiracy to possess with intent to distribute more than

1000 kilograms of marijuana.

Fernandez also contends that the plea agreement is invalid

because the district court did not expressly accept or reject the

agreement at the rearraignment. The district court implicitly

accepted the agreement, however, by not rejecting it and by

ensuring that Fernandez received the benefit of the agreement

through the promised dismissal of the other counts against him.4

3 United States v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir. 1977). 4 United States v. Morales-Sosa, 191 F.3d 586, 588 (5th Cir. 1999) (“We are also persuaded by the government's argument that the district court did in fact implicitly accept the plea agreement. Had the district court rejected Sosa's agreement, the court would have been required, under Rule 11(e)(4), to inform the parties of this fact and to advise Sosa personally that the court was not bound by the agreement. Here, the fact that the district court did

-3- Appellant additionally asserts that the plea was induced by

fraud. After a hearing, the district court rejected Fernandez’s

assertions of fraud in the inducement based on a finding that

Fernandez lacked any credibility. We will not second-guess the

district court’s credibility assessment.5

Fernandez also appeals the district court’s denial of his

motion to withdraw the guilty plea. We review the ruling for an

abuse of discretion.6 Fernandez failed to carry his burden of

establishing a fair and just reason for withdrawing his plea.7

Based on Fernandez’s lack of credibility, the district court

determined that the plea was knowing and voluntary and not the

result of ineffective assistance of counsel.

As Fernandez acknowledges, if his plea agreement is valid, so

is his waiver of his right to appeal his sentence. The plea and

the agreement are valid; therefore Appellant has waived his right

to challenge the district court’s calculation of the sentence.

Consequently, we need not address his contentions that the court

not follow the procedures of Rule 11(e)(4) coupled with the fact that, immediately following sentencing, Sosa received the benefits of the plea agreement in the dismissal of the original indictment and a downward departure from the applicable guidelines, indicate that the court implicitly accepted the plea agreement.”). 5 United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997). 6 United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991). 7 United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988).

-4- AFFIRMED.

-5-