USA v. Salvador Carrillo-Mendoza

Filing

UNPUBLISHED OPINION FILED. [16-41672 Dismissed] Judge: EHJ , Judge: PRO , Judge: CH Mandate issue date is 11/15/2017 for Appellant Salvador Carrillo-Mendoza; granting motion to dismiss appeal filed by Appellee USA [8534422-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8534422-3] [16-41672]

Case: 16-41672

Document: 00514208656

Page: 1

Date Filed: 10/24/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41672
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 24, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff—Appellee,
v.
SALVADOR CARRILLO-MENDOZA,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CR-172-11
Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *

Salvador Carrillo-Mendoza appeals the 121-month sentence imposed
following his guilty plea conviction for conspiracy to possess with the intent to
manufacture and distribute methamphetamine in violation of 21 U.S.C.
§§ 846, 841(a)(1) & (b)(1)(A). The Government has moved to dismiss the appeal
based on the appeal waiver in Carrillo-Mendoza’s plea agreement or, in the
alternative, for an extension of time to file a brief.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41672

Document: 00514208656

Page: 2

Date Filed: 10/24/2017

No. 16-41672
The validity of an appeal waiver is a question of law that this court
reviews de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
During his plea colloquy, Carrillo-Mendoza confirmed that he had read the
plea agreement, discussed it with his attorney, and understood its terms. He
confirmed that he understood the appeal waiver provision and its exceptions
and assured the court that he was voluntarily waiving his right to appeal.
Based on our review of the record, Carrillo-Mendoza’s appeal waiver was
knowing and voluntary and, therefore, is enforceable. See United States v.
Higgins, 739 F.3d 733, 736-37 (5th Cir. 2014); FED. R. CRIM. P. 11(b)(1)(N).
Carrillo-Mendoza waived the right to appeal his conviction and sentence
“on all grounds,” except that he retained the right to challenge any sentence in
excess of the statutory maximum and the right to raise a claim of ineffective
assistance of counsel. His current challenge to the substantive reasonableness
of his below-guideline sentence does not fall within either of the limited
exceptions to the appeal waiver.
Accordingly, the Government’s motion to dismiss the appeal is
GRANTED, and its alternative motion for an extension of time to file a brief is
DENIED. Counsel for Carrillo-Mendoza is CAUTIONED that pursuing an
appeal contrary to a valid waiver without responding to the Government’s
invocation of the waiver is a needless waste of judicial resources that could
result in sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir.
1999).

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