USA v. Noe Lira-Miranda

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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