USA v. Sotero Sotelo

Filing

UNPUBLISHED OPINION FILED. [10-40351 Affirmed as Modified] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 12/09/2010 for Appellant Sotero Sotelo [10-40351]

USA v. Sotero Sotelo ase: 10-40351 C

Document: 00511298255 Page: 1 Date Filed: 11/18/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40351 S u m m a r y Calendar November 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. S O T E R O SOTELO, 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 Southern District of Texas U S D C No. 1:09-CR-61-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* S o t e r o Sotelo pleaded guilty pursuant to a written plea agreement to c o n s p ir a c y to smuggle items from the United States and exportation of s e m ia u t o m a t ic rifles. On appeal, Sotelo seeks to raise substantive challenges to t h e district court's decision to upwardly depart from the applicable guidelines r a n g e and impose an 87-month sentence on the firearm-exportation charge. The G o v e r n m e n t argues that Sotelo's appeal is barred by the appeal waiver in his p le a agreement. Sotelo contends that the appeal waiver is not enforceable
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40351 Document: 00511298255 Page: 2 Date Filed: 11/18/2010 No. 10-40351 b e c a u s e the Government breached the plea agreement by requesting the d e p a r t u r e and because the district court told him at sentencing that he could a p p e a l. Because the Government must invoke the waiver provision for it to a p p ly , Sotelo's response in his reply to the Government's invocation may be c o n s id e r e d by this court. See United States v. Ramirez, 557 F.3d 200, 203 (5th C ir . 2009); United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). A defendant may waive his right to appeal as part of a valid plea a g r e e m e n t if the waiver is knowing and voluntary. United States v. McKinney, 4 0 6 F.3d 744, 746 (5th Cir. 2005). To determine whether an appeal of a sentence is barred by an appeal waiver provision in a plea agreement, we conduct a twos t e p inquiry: (1) whether the waiver was knowing and voluntary and (2) whether t h e waiver applies to the circumstances at hand, based on the plain language of t h e agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). We r e v ie w the validity of an appeal waiver de novo. United States v. Burns, 433 F .3 d 442, 445 (5th Cir. 2005). A t rearraignment, Sotelo stated under oath that he had reviewed the plea a g r e e m e n t with counsel and had signed it. The district court explained to Sotelo t h a t by entering the guilty plea, he had given up his right to appeal or c o lla t e r a lly attack his sentence. Sotelo averred that he understood the appeal w a iv e r . C o n t r a r y to Sotelo's assertion, the Government did not breach the plea a g r e e m e n t. The Government was obligated to request full credit for acceptance o f responsibility and dismissal of the outstanding charges in the indictment, w h ic h it did. The agreement did not bind the parties to a particular sentencing r a n g e or recommendation. Cf. United States v. Munoz, 408 F.3d 222, 225-27 (5th C ir . 2005) (finding a breach of the plea agreement when the Government agreed t h a t a particular guidelines range should apply, then at sentencing supported t h e probation officer's alternative guidelines calculations). Moreover, the fact t h a t the court told Sotelo at sentencing that he had a right to appeal does not 2

Case: 10-40351 Document: 00511298255 Page: 3 Date Filed: 11/18/2010 No. 10-40351 a ffe c t the validity of the waiver. See United States v. Gonzalez, 259 F.3d 355, 3 5 8 (5th Cir. 2001). S o t e lo also asserts that the concurrent 87-month sentence he received for t h e conspiracy charge exceeds the statutory maximum term of imprisonment of fiv e years. See 18 U.S.C. § 371. Although this argument constitutes a challenge t o sentencing that is arguably barred by the waiver provision, the Government h a s failed to invoke the waiver as to this claim, and we may thus review it. See S to r y , 439 F.3d at 231. Although Sotelo has raised his argument for the first t im e on appeal, "because a sentence which exceeds the statutory maximum is an ille g a l sentence and therefore constitutes plain error, we review this issue de n o v o ." United States v. Thomas, 600 F.3d 387, 388 (5th Cir. 2010) (internal q u o t a t io n marks and citation omitted). S o t e lo 's 87-month sentence exceeds the statutory maximum of 60 months fo r the conspiracy offense. Accordingly, we MODIFY Sotelo's sentence for the c o n s p ir a c y charge to 60 months in prison. See United States v. De Jesus-Batres, 4 1 0 F.3d 154, 164 (5th Cir. 2005). The modification does not affect the overall t e r m of imprisonment because Sotelo's concurrent sentence for his exportation c h a r g e exceeds the modified sentence. A F F IR M E D as modified. See id. Sotelo's sentences are thus

3