United States v. Pena

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30646 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO PENA, also known as Wado, also known as Nelson Torres,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana (97-CR-145-2) - - - - - - - - - - May 18, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Eduardo Pena appeals his guilty-plea conviction and sentence

for murder in furtherance of a continuing criminal enterprise,

conspiracy to possess with intent to distribute cocaine

hydrochloride, conspiracy to possess with intent to distribute

marijuana, conspiracy to use and carry a firearm, conspiracy to

launder money, and aiding and abetting. Pena did not file his

notice of appeal within ten days of entry of judgment. See Fed. R.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. App. P. 4(b)(1). Jurisdiction is therefore at issue. See United

States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). It is not

clear whether the appeal period was tolled by Pena’s postjudgment

motion to vacate his sentence and withdraw his guilty plea. See

United States v. Carmouche, 138 F.3d 1014 (5th Cir. 1998); United

States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995); Fed. R.

Crim. P. 32(e). We need not reach this issue, however, because

Pena’s appeal is frivolous. See e.g., Alvarez, 210 F.3d at 310.

We lack jurisdiction to review the district court’s decision not to

depart downward from the guideline range because the district court

did not base its decision on an erroneous belief that it lacked the

authority to depart. United States v. Landerman, 167 F.3d 895, 899

(5th Cir. 1999).

Under Fed. R. Crim. P. 32(e), Pena’s post-sentencing request

to withdraw his plea or vacate his sentence must be made either on

direct appeal or pursuant to a § 2255 motion. The plea agreement

precludes him from appealing his sentence or filing a § 2255

motion, however, unless his sentence exceeds the statutory maximum

penalty or constitutes an upward departure from the guidelines. As

the district court sentenced Pena within the applicable guideline

range, he is not entitled to move to vacate his sentence or

withdraw his guilty plea. Fed. R. Crim. P. 32(e).

2 Pena’s appeal is without arguable merit and frivolous. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). We therefore

dismiss it. See 5th Cir. R. 42.2.

APPEAL DISMISSED.