United States v. Machado-Carrizales

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40509 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL MACHADO-CARRIZALES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas UDC No. L-96-CR-135-1 - - - - - - - - - -

April 02, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Juan Manuel Machado-Carrizales appeal his guilty-plea

conviction to possession with intent to distribute approximately

377 pounds of marihuana and carrying a firearm during and in

relation to a drug-trafficking crime. He contends that the

district court failed to give him an opportunity to plead not

guilty pursuant to Fed. R. Crim. P. 11(e)(4) when it was unlikely

that the district court would follow the sentencing

recommendation in the plea agreement.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-40509 -2-

The precepts of Rule 11(e)(4) do not apply to Machado-

Carrizales’ plea agreement, which was entered into pursuant to

Rule 11(e)(1)(B). United States v. Babineau, 795 F.2d 518, 520

(5th Cir. 1986). This issue is without any arguable merit. The

appeal is frivolous and is DISMISSED as such. See 5th Cir. R.

42.2.

APPEAL DISMISSED.