USA v. Lorenzo Aguilar

Filing

UNPUBLISHED OPINION FILED. [15-50415 Affirmed ] Judge: EHJ , Judge: JES , Judge: RHB Mandate pull date is 11/03/2017 [15-50415]

Case: 15-50415

Document: 00514151816

Page: 1

Date Filed: 09/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50415
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 12, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
LORENZO H. AGUILAR,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CV-213
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *

Lorenzo Aguilar, federal prisoner # 87331-280, pleaded guilty pursuant
to a plea agreement to conspiracy to commit mail fraud and the deprivation of
honest services, in violation of 18 U.S.C. §§ 1349, 1346, and 1341.

In

accordance with Federal Rule of Criminal Procedure 11(c)(1), the plea
agreement provided for a sentence of not more than 48 months’ imprisonment.
He did not appeal his conviction and sentence.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-50415

Document: 00514151816

Page: 2

Date Filed: 09/12/2017

No. 15-50415
Subsequently, Aguilar filed a 28 U.S.C. § 2255 motion, claiming the court
violated Rule 11(c)(1) by improperly participating in plea negotiations,
resulting in his guilty plea’s being involuntary. The court dismissed the § 2255
motion as procedurally barred. Our court granted Aguilar a certificate of
appealability (COA) on whether his claim fell outside of the procedural-default
doctrine because the record was not sufficiently developed to allow the claim
to be raised on direct appeal. (Aguilar also briefs issues not permitted for
appeal in the COA order. In the absence of a request to broaden the grant of
COA, this court’s review is limited to issues for which a COA has been granted.
United States v. Kimler, 150 F.3d 429, 430 (5th Cir. 1998).)
In reviewing the denial of a § 2255 motion, factual findings are reviewed
for clear error; conclusions of law, de novo. E.g., United States v. Cavitt, 550
F.3d 430, 435 (5th Cir. 2008). “There is no clear error if the district court’s
findings are plausible in light of the record as a whole.” United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Despite his admitted awareness of the court’s alleged improper
participation in plea negotiations, Aguilar failed to develop the record in the
court in order to properly preserve his claim for appeal. Although he could
have developed the record by raising an objection in district court or moving to
withdraw the plea, he did not do so. Moreover, even had his claim been limited
to plain-error review on appeal, Aguilar could have supported his claim with
the same documentation he provided in support of his § 2255 motion. Aguilar
has not shown the court clearly erred in concluding his claim could have been
raised on direct appeal.
AFFIRMED.

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