USA v. Noe Lira-Miranda


UNPUBLISHED OPINION FILED. [13-40963 Dismissed ] Judge: CDK , Judge: EGJ , Judge: CH Mandate pull date is 12/15/2014 for Appellant Noe Lira-Miranda [13-40963]

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Case: 13-40963 Document: 00512846750 Page: 1 Date Filed: 11/24/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-40963 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 24, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. NOE LIRA-MIRANDA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:13-CR-235 Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM: * Noe Lira-Miranda appeals the sentence imposed following his guilty plea conviction to conspiracy to transport illegal aliens. The guilty plea was made pursuant to a plea agreement wherein Lira-Miranda waived the right to appeal his sentence, reserving only the right to appeal a sentence above the statutory maximum or an upward departure not requested by the Government. LiraMiranda was sentenced within the guidelines range to the statutory maximum 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40963 Document: 00512846750 Page: 2 Date Filed: 11/24/2014 No. 13-40963 of 120 months of imprisonment, to be followed by three years of supervised release. On appeal, Lira-Miranda challenges the enhancements applied to his sentence under U.S.S.G. §§ 2L1.1(b)(2)(B), 2L1.1(b)(5)(B), 2L1.1(b)(8)(A), and 3C1.1. His challenges to the application of sentence enhancements do not fall within an exception to the appeal waiver because the sentence is not an upward departure. See United States v. Gaitan, 171 F.3d 222, 222-24 (5th Cir. 1999). The Government invokes the appeal waiver and seeks a dismissal of the appeal. A review of the record indicates that the appeal waiver was unambiguous, that Lira-Miranda knowingly and voluntarily waived his right to appeal his sentence, and that his claims of error regarding his sentence are barred by the appeal waiver. See United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014), cert. filed, No. 14-256 (Aug. 29, 2014). Additionally, the district court’s statements at sentencing did not negate the appeal waiver. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). Furthermore, a district court does not have the authority to accept a plea agreement while striking the appeal waiver provision. See United States v. Serrano-Lara, 698 F.3d 841, 84445 (5th Cir. 2012). Accordingly, the appeal is DISMISSED. 2

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