USA v. Hector Diaz-Osuna

Filing

UNPUBLISHED OPINION FILED. [16-60212 Dismissed ] Judge: EHJ , Judge: JLW , Judge: EBC Mandate pull date is 07/12/2017 for Appellant Hector Miguel Diaz-Osuna; granting motion to dismiss appeal filed by Appellee USA [8428360-2]; denying motion for summary affirmance filed by Appellee USA [8428360-3] [16-60212]

Case: 16-60212

Document: 00514042190

Page: 1

Date Filed: 06/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60212
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 21, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HECTOR MIGUEL DIAZ-OSUNA, also known as Pariente,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 5:13-CR-13-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Hector Miguel Diaz-Osuna appeals from his judgment of conviction and
sentence following his jury trial conviction of conspiracy to cause a riot in a
federal prison and his guilty plea conviction of voluntary manslaughter of a
federal prison guard. Diaz-Osuna challenges only the jury trial conviction,
arguing that that the evidence was insufficient and that the district court erred
in giving an Allen 1 charge. The Government moves to dismiss the appeal or,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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Allen v. United States, 164 U.S. 492, 501 (1896).

Case: 16-60212

Document: 00514042190

Page: 2

Date Filed: 06/21/2017

No. 16-60212
alternatively, for summary affirmance based on the appeal waiver in DiazOsuna’s plea agreement.

Diaz-Osuna’s opening brief did not address the

waiver and he has not responded to the Government’s argument.
We review de novo whether an appeal waiver bars an appeal. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). Diaz-Osuna’s waiver was
knowing and voluntary as the record shows that he knew he had the right to
appeal and that he was giving up that right by entering the plea agreement.
See United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014). Also, the
waiver plainly applies to his challenge to his jury trial conviction. See id.
Accordingly, we GRANT the Government’s motion to dismiss and DENY the
alternative motion for summary affirmance.

Counsel for Diaz-Osuna is

cautioned that pursuing an appeal contrary to a valid waiver and without
responding to the Government’s invocation of the waiver is a needless waste of
judicial resources and could result in sanctions. See United States v. Gaitan,
171 F.3d 222, 223-24 (5th Cir. 1999).
APPEAL DISMISSED.

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