United States v. Moreno

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20681 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS MORENO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CR-142-14 -------------------- July 25, 2002

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Luis Moreno appeals from his conviction of drug-trafficking

and money-laundering conspiracies. Moreno argues that the district

court’s proceedings were void ab initio because the district court

did not make an express, oral, adjudication of guilt or acceptance

of Moreno’s plea agreement. Moreno persistently and mistakenly

relies on Crain v. United States, 162 U.S. 625 (1896), a case that

was clearly overruled by Garland v. Washington, 232 U.S. 642

(1914), with regard to the issue for which Moreno cites it.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Although the district court did not expressly and precisely state

that the court was accepting the plea and finding the defendant

guilty, the record shows that there could have been no plausible

doubt as to whether Moreno’s plea had been accepted and his guilt

adjudicated. Because Moreno did not object to the alleged error,

his claim is reviewed for plain error, and he has shown none. See

United States v. Vonn, 122 S. Ct. 1043, 1048 (2002). Moreno’s

contention that the district court failed to expressly accept his

plea agreement likewise fails plain-error review because Moreno

received the bargained-for dismissal of other counts. See United

States v. Morales-Sosa, 191 F.3d 586, 588 (5th Cir. 1999).

Moreno also contends that his life sentence is improper under

Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government

contends that Moreno waived his Apprendi contention by waiving his

right to appeal his sentence and that Moreno’s Apprendi contention

is unavailing on its merits. Moreno’s waiver of any appeal of his

sentence is valid. See United States v. Robinson, 187 F.3d 516,

518 (5th Cir. 1999); United States v. Portillo, 18 F.3d 290, 292

(5th Cir. 1994). Even without it, Moreno’s appeal has no merit.

There was no Apprendi violation in the case. Moreno’s indictment

alleged that he had conspired to possess with intent to distribute

1,000 or more kilograms of marijuana, an offense carrying a

statutory maximum penalty of life imprisonment. 21 U.S.C. §§

841(b)(1)(A), 846. Moreno’s life sentence was within that range.

See United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000),

cert. denied, 531 U.S. 1182 (2001).

2 AFFIRMED.