United States v. Andrade , 242 F. App'x 274 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 05-20875
F I L E D
Summary Calendar September 19, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS ALONZO ANDRADE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-35-ALL
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Carlos Alonzo Andrade appeals his conviction and sentence for unlawful
possession of a firearm by a convicted felon; possession with intent to distribute
cocaine; possession with intent to distribute crack cocaine; and illegal reentry.
He challenges his sentence on the following bases: (1) he was erroneously found
in possession of narcotics and a firearm on the basis of “relevant conduct”; (2) he
should have been granted a two-level reduction in his offense level for acceptance
of responsibility; and (3) his criminal history score was incorrectly calculated.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 05-20875
Andrade, however, pleaded guilty pursuant to a plea agreement that
contained an appeal waiver, which the Government seeks to enforce and which,
by its terms, bars consideration of his sentencing claims. Regarding his first
sentencing claim, Andrade argues that the district court was constitutionally
required to apply a higher burden of proof than preponderance of the evidence
when determining the quantity of drugs involved in relevant conduct. Despite
the validity of the appeal waiver, we note that this argument is foreclosed by
circuit precedent. United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 546 U.S. 828 (2005); United States v. Harper, 448 F.3d 732, 735 (5th
Cir.), cert. denied 127 S. Ct. 285 (2006); United States v. Vittek, 228 F. App’x 469,
475-76 (5th Cir. May 16, 2007) (unpublished), petition for cert. filed (U.S. Aug.
14, 2007) (No. 07-5934). We decline to address Andrade’s remaining sentencing
claims because the appeal waiver bars consideration of those claims. See United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). A defendant may waive his
statutory right to appeal his sentence if the waiver is knowing and voluntary.
Id. Because Andrade stated at the Rule 11 hearing that he read and understood
his plea agreement, which included an explicit, unambiguous waiver of appeal,
we find that the waiver was both knowing and voluntary. United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Andrade contends that ineffective assistance of counsel rendered invalid
his guilty plea and the appeal waiver provision therein. Although we have held
that an ineffective assistance of counsel argument survives a waiver of appeal
when the claimed assistance directly affected the validity of that waiver or the
plea itself, United States v. White, 307 F.3d 336, 343 (5th Cir. 2002), we have
also held that we will not address such claims for the first time on direct appeal
where they were not sufficiently developed in the trial court and the record is
sparse. United States v. Brewster, 137 F.3d 853, 859 (5th Cir.), cert. denied 525
U.S. 908 (1998); United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). This
is such a case, where the district court never directly addressed the possibility
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No. 05-20875
of ineffective assistance. Andrade can raise this argument under 28 U.S.C.
§ 2255. See Brewster, 37 F.3d at 859; United States v. Grammas, 376 F.3d 433,
436 n.2 (5th Cir. 2004).
Insofar as Andrade challenges, for the first time on appeal, the
enforceability of the appeal waiver provision on the bases that (1) the plea
agreement failed pursuant to U.S.S.G. § 6B1.4(b) to identify the facts that were
in dispute and (2) the plea agreement did not properly communicate the 10-year
minimum sentence inherent in the plea, he has not shown plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Angeles-Mascote,
206 F.3d 529, 530 (5th Cir. 2000). We find that the factual stipulation contained
in the plea agreement clearly indicated that whether Andrade resided in the
apartment containing the additional narcotics and the firearm was a fact in
dispute. At the sentencing hearing, the district court resolved this factual
dispute and found by a preponderance of the evidence that the additional
narcotics and the firearm in the apartment should be attributed to Andrade as
relevant conduct. Furthermore, we find that both the plea agreement and the
district court properly communicated the 10-year minimum sentence inherent
in the plea.
For the first time in his reply brief, Andrade argues that (1) the waiver of
appeal provision failed to contain a “clear scope” because it did not explain 18
U.S.C. § 3742; (2) he did not understand the consequences of the waiver
provision; (3) the Government’s knowledge of counsel’s alleged conflict of interest
gave it unclean hands, rendering the waiver involuntary; and (4) enforcement
of the waiver would constitute a miscarriage of justice. Because these
arguments were not raised in his original brief on the merits, they are not
entertained. Avants, 367 F.3d at 449.
AFFIRMED.
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