United States v. Polendo

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 19, 2025
• Docket: 24-50912
• Status: Unpublished

Opinion

Case: 24-50912 Document: 86-1 Page: 1 Date Filed: 11/19/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit

FILED No. 24-50912 November 19, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Alma Rosa Polendo,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:02-CR-14-1 ______________________________

Before Barksdale, Graves, and Duncan, Circuit Judges. Per Curiam: * Alma Rosa Polendo pleaded guilty in early 2002, pursuant to a written plea agreement containing an appeal waiver, to conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (prohibiting possession with intent to distribute), (b)(1)(A) (setting penalty), and 21 U.S.C. § 846 (prohibiting conspiracy). Shortly after

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-50912 Document: 86-1 Page: 2 Date Filed: 11/19/2025

No. 24-50912

pleading guilty, she fled to Mexico. She was sentenced in absentia. After being rearrested almost 21 years later, in late 2024, she was resentenced, on her motion, and received a lesser sentence. Polendo challenges her 2002 guilty plea and the substantive reasonableness of her 2024 within-Guidelines 151-months’ imprisonment sentence and five years’ supervised release. The Government seeks enforcement of her appeal waiver only for her substantive-reasonableness challenge. In the absence of the Government’s objection, the waiver is not binding for her guilty-plea contention. E.g., United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (“[Defendant]’s waiver of appeal is enforceable to the extent that the government invokes the waiver provision in [her] plea agreement.”). Polendo challenges her guilty plea based on the unavailability of her rearraignment transcript in district court. A motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Lord, 915 F.3d 1009, 1013–14 (5th Cir. 2019). In determining whether defendant may withdraw her guilty plea after acceptance but before sentencing, our court applies the seven-factor test provided in United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984). Polendo’s rearraignment transcript is now part of the record on appeal, and she fails to raise the Carr factors or controlling authority in her briefing. Accordingly, she does not show the district court “base[d] its decision on an error of law or a clearly erroneous assessment of the evidence”. Lord, 915 F.3d at 1014 (citation omitted). Regarding Polendo’s contending her sentence is substantively unreasonable, and as noted supra, the Government seeks enforcement of her appeal waiver. An appeal waiver’s applicability is reviewed de novo. E.g., United States v. Jacobs, 635 F.3d 778, 780–81 (5th Cir. 2011). A valid appeal

2 Case: 24-50912 Document: 86-1 Page: 3 Date Filed: 11/19/2025

waiver must: be “knowing and voluntary”; and “appl[y] to the circumstances at hand, based on the plain language of the agreement”. Id. at 781 (citation omitted). Because Polendo does not assert the appeal waiver is ineffective, uninformed, involuntary, or otherwise unenforceable, she has abandoned this issue. E.g., United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992) (“Failure to prosecute an issue on appeal constitutes waiver of the issue.”). Accordingly, her substantive-reasonableness challenge is barred. See United States v. Cruz-Romero, 848 F.3d 399, 402 (5th Cir. 2017). AFFIRMED.