United States v. Herrera

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 13, 2025
• Docket: 24-40451
• Status: Unpublished

Opinion

Case: 24-40451 Document: 59-1 Page: 1 Date Filed: 01/13/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-40451 Summary Calendar FILED ____________ January 13, 2025 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Walter Herrera,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:21-CR-285-46 ______________________________

Before Smith, Stewart, and Duncan, Circuit Judges. Per Curiam: * Walter Herrera pleaded guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute fentanyl. The plea agreement contained an appeal waiver in which he waived his right to appeal, with the exception of the right to appeal a punishment above the statutory

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-40451 Document: 59-1 Page: 2 Date Filed: 01/13/2025

No. 24-40451

maximum and the right to raise a claim of ineffective assistance of counsel. He was sentenced to 168 months in prison. On appeal, Herrera asserts that the district court erroneously applied a two-level adjustment under U.S.S.G. § 2D1.1(b)(1). The Government moves to dismiss the appeal on the basis that the appeal waiver is valid and enforceable. We review de novo whether an appeal waiver bars an appeal. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). A defendant may waive his right to appeal if the waiver is (1) knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the plea agreement. United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014). The record establishes that Herrera knew that he had a right to appeal, was aware that he was relinquishing that right pursuant to the appeal waiver, and appreciated the consequences of giving up that right. Herrera therefore knowingly and voluntarily waived his right to appeal. See id. Further, the plain language of the appeal waiver applies to his appeal. See id. His sentence does not exceed the statutory maximum prison term for the offense of conviction, see 21 U.S.C. § 841(b)(1)(A), and he has not raised a claim of ineffective assistance of counsel. He is not otherwise released from the appeal waiver due to a breach of the plea agreement by the Government. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Herrera has not shown that the waiver should not apply. His supposed failure to anticipate the alleged sentencing error does not provide a basis for us to refuse to enforce the waiver. See United States v. Barnes, 953 F.3d 383, 388 (5th Cir. 2020). Moreover, we have not adopted a miscarriage-of-justice exception for appeal waivers, see id. at 389, and we decline to do so here.

2 Case: 24-40451 Document: 59-1 Page: 3 Date Filed: 01/13/2025

Thus, the appeal waiver bars this appeal. See Higgins, 739 F.3d at 736- 37. The motion to dismiss is GRANTED, and the appeal is DISMISSED.