USA v. Pedro Lopez-Castillo

Filing 511133736

USA v. Pedro Lopez-Castillo

Doc. 511133736

Case: 09-50456

Document: 00511133736

Page: 1

Date Filed: 06/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50456 S u m m a r y Calendar June 7, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e , v ersu s P E D R O LOPEZ-CASTILLO, Also Known as Pedro Castillo Lopez, Also Known as Pedro Castillo-Lopez, D e f e n d a n t -A p p e l la n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 2:08-CR-270-1

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:*

P e d r o Lopez-Castillo appeals the sentence imposed following his guilty-

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 09-50456

Document: 00511133736 Page: 2 No. 09-50456

Date Filed: 06/07/2010

p l e a conviction. For the first time on appeal, he contends that the district court e r r e d in not awarding him a U.S.S.G. § 5C1.2 safety-valve reduction and in failin g to impose a sentence below the statutory minimum. As the government c o n te n d s , however, the appeal is barred by the waiver-of-appeal provision in the p le a agreement, which was knowing, voluntary, and enforceable. See United S ta t e s v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo, 1 8 F.3d 290, 292-93 (5th Cir. 1994); FED. R. CRIM. P. 11(b)(1)(N). L o p e z -C a s tillo nonetheless argues that the appellate-waiver provision is u n e n fo r c e a b le , because the government breached the plea agreement by not req u e s t in g a safety-valve reduction. That argument fails, because the government w a s under no obligation to request such reduction and because Lopez-Castillo d id not qualify for it. Likewise, his assertion that the government breached the t e r m s of the agreement by not filing a motion for reduction of sentence under F e d e r a l Rule of Criminal Procedure 35 is unavailing, because the government d i d not bargain away its discretion to file for a sentencing reduction, and the a g r e e m e n t did not otherwise obligate the government to file such a motion. See W a d e v. United States, 504 U.S. 181, 185 (1992); United States v. Sneed, 63 F.3d 3 8 1 , 388 n.6 (5th Cir. 1995). Finally, Lopez-Castillo's alternative argumentSS t h a t the waiver, even if enforceable, does not apply, because his claim involves a n allegation of prosecutorial misconduct that is excluded under the waiverSSis w it h o u t merit. A F F IR M E D .

2