United States v. Pena

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 3, 2003
• Docket: 02-20509
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 3, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20509 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO PENA, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CR-142-35

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Armando Pena, Jr., appeals his sentence following his guilty-

plea conviction for conspiracy to possess with intent to distribute

marijuana, a violation of 21 U.S.C. §§ 846 and 841(b), and the

denial of his motion to withdraw his guilty plea. Pena was

sentenced to 360 months in prison and five years of supervised

release.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Pena’s plea agreement contained a provision by which he waived

his right to appeal his sentence and “the manner in which it was

determined.” The Government has filed a motion to dismiss the

appeal on the basis of this waiver.

Pena argues that the district court abused its discretion in

denying his motion to withdraw his guilty plea, apparently on the

grounds that there was a four-year delay in sentencing and that the

factual basis for the plea was insufficient. Although Pena waived

his right to appeal his sentence as part of his plea, such a waiver

is enforceable only if the plea agreement itself is valid.1 Pena

has not established that, in denying his motion to withdraw, the

district court abused its discretion; it is not clear that any of

the seven factors discussed in United States v. Carr2 supported the

withdrawal of his guilty plea.3

Pena’s contention that the factual basis offered by the

Government was insufficient to support his guilty plea is

meritless. That factual basis showed that there was an agreement

to possess marijuana with intent to distribute, that Pena knew of

the agreement, that he voluntarily participated in the agreement,

1 See United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). 2 740 F.2d 339, 343-44 (5th Cir. 1984). 3 See United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991).

2 and that the agreement involved more than 1,000 kilograms of

marijuana.4

Pena’s remaining contentions regard the computation of his

sentence under the Sentencing Guidelines and various procedural

matters concerning sentencing. Pena does not suggest that the

waiver provision in the plea agreement was not knowing and

voluntary. Because Pena entered his plea knowingly and

voluntarily, and the factual basis supporting it is sufficient, the

waiver of appeal is sustained.5 Pena’s contentions regarding his

sentence and the manner in which it was determined are precluded by

the waiver, and we therefore do not consider those arguments.

The judgment of the district court is AFFIRMED. The

Government’s motion to dismiss is DENIED as unnecessary.

4 See United States v. DeLeon, 247 F.3d 593, 596 (5th Cir. 2001). 5 See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).