USA v. Miguel Echevarria-Jimenez

Filing

UNPUBLISHED OPINION FILED. [13-40834 Dismissed ] Judge: PEH , Judge: JLD , Judge: JEG Mandate pull date is 05/06/2014 for Appellant Miguel Angel Echevarria-Jimenez; granting motion to dismiss appeal filed by Appellee USA [7505160-2]; denying as moot motion to extend time to file appellee's brief filed by Appellee USA [7505160-3] [13-40834]

Case: 13-40834

Document: 00512597158

Page: 1

Date Filed: 04/15/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-40834
Summary Calendar

FILED
April 15, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ANGEL ECHEVARRIA-JIMENEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-962
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Miguel Angel Echevarria-Jimenez (Echevarria) appeals the 57-month
sentence imposed following his guilty plea conviction for being unlawfully
found in the United States after deportation, having previously been convicted
of a felony. Echevarria argues that the 16-level enhancement for being found
in the United States after a felony drug trafficking offense was not warranted
because his 2008 conviction for possession with intent to deliver a controlled

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 13-40834

Document: 00512597158

Page: 2

Date Filed: 04/15/2014

No. 13-40834
substance could have been charged as a misdemeanor under federal law and,
as a result, the conviction was not a “felony” for purposes of U.S.S.G.
§ 2L1.2(b)(1).

Echevarria also argues that counsel rendered ineffective

assistance by failing to argue that the 2008 conviction was not a felony for
purposes of § 2L1.2(b)(1). He contends that the appeal waiver in his plea
agreement does not preclude him from raising an ineffective assistance of
counsel claim on direct appeal.
The Government moves for dismissal because Echevarria’s appeal is
barred by the waiver of appeal in the plea agreement. In the alternative, the
Government requests an extension of time to file its appellate brief.
A review of the record shows that Echevarria knowingly and voluntarily
waived his right to appeal his sentence, see United States v. Portillo, 18 F.3d
290, 292 (5th Cir. 1994), and that his arguments are barred by the appeal
waiver. Therefore, the appeal is DISMISSED. The Government’s alternative
motion to extend the time to file its brief is DENIED as moot.

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