USA v. Javier Flores-Valdez

Filing 511136548

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USA v. Javier Flores-Valdez Doc. 511136548 Case: 09-50808 Document: 00511136548 Page: 1 Date Filed: 06/09/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-50808 S u m m a r y Calendar June 9, 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. J A V IE R FLORES-VALDEZ, D e fe n d a n t-A p p e lla 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. 7:09-CR-111-1 B e fo r e KING, STEWART and HAYNES, Circuit Judges. P E R CURIAM:* J a v ie r Flores-Valdez (Flores) appeals his sentence of 36 months of im p r is o n m e n t and three years of supervised release for illegal reentry in v io la t io n of 8 U.S.C. § 1326(a) and (b)(1). However, in his written plea a g r e e m e n t, Flores waived his right to appeal his sentence on any ground, except f o r ineffective assistance of counsel or prosecutorial misconduct. F lo r e s does not assert that his appeal waiver is invalid or unenforceable. T h e record of the rearraignment hearing indicates that Flores read and 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50808 Document: 00511136548 Page: 2 No. 09-50808 Date Filed: 06/09/2010 u n d e r s t o o d his plea agreement and that he raised no question regarding the a p p e a l waiver. Therefore, his waiver was knowing and voluntary. See United S ta t e s v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Flores's challenges to his s e n te n c e do not fall within the exceptions to the appeal waiver. See id. at 7464 7 . Therefore, the appeal waiver bars the instant appeal.1 F lo r e s 's conviction is AFFIRMED. However, this case is REMANDED p u r s u a n t to FED. R. CRIM. P. 36 for the limited purpose of correcting a clerical e r r o r in the judgment to reflect that Flores was convicted and sentenced under § 1326(a) and (b)(1) rather than § 1326(a). Robert R. Sykes, counsel for Flores, did not address the appeal waiver or respond to the Government's argument regarding the appeal waiver. We caution counsel that pursuing a basis for appeal that is waived by a valid appeal waiver and failing to address the waiver in a reply brief after it is raised by the Government may result in sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999). 1 2

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