United States v. Lopez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50888 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL ISIDRO SOTELO LOPEZ, also known as El Bigotes,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1129-2-DB - - - - - - - - - - September 24, 2002

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Daniel Isidro Sotelo Lopez (Sotelo) appeals his sentence

for conspiracy to possess with intent to distribute more than 1,000

kilograms of marijuana. 21 U.S.C. § 841(a)(1), 846. He argues

that he should not have been held accountable for marijuana

involved in his brothers’ separate conspiracy. See U.S.S.G.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-50888 -2-

§ 1B1.3. He does not address his waiver, pursuant to his plea

agreement, of his right to appeal.

The record demonstrates that Sotelo’s appeal waiver was

informed and voluntary. United States v. Portillo, 18 F.3d 290,

292-93 (5th Cir. 1994); United States v. Melancon, 972 F.2d 566,

567 (5th Cir. 1992). The only appeal rights reserved by Sotelo

were (1) the right to appeal his eligibility for departure from the

minimum mandatory pursuant to 18 U.S.C. § 3553(f), (2) the right to

appeal any upward departure imposed pursuant to U.S.S.G. § 5K2.0,

and (3) the right to raise constitutional challenges to the

effectiveness of counsel or to prosecutorial misconduct by way of

a collateral attack under 28 U.S.C. § 2255. Id. at 7-8. Sotelo’s

argument that he should not be held accountable for relevant

conduct is not an appeal basis excepted from the waiver. It does

not represent an upward departure, see United States v. Gaitan, 171

F.3d 222, 223-24 (5th Cir. 1999), and this direct appeal does not

qualify as a collateral attack on the effectiveness of counsel or

on the prosecutor’s conduct.

Although the Government asserted the appeal waiver in its

brief, defense counsel did not file a reply brief. He has

therefore failed to address the threshold issue before this court.

APPEAL DISMISSED.