United States v. Servando Pineda-Campos , 622 F. App'x 445 ( 2015 )

Case: 14-10947 Document: 00513263472 Page: 1 Date Filed: 11/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-10947 November 9, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERVANDO PINEDA-CAMPOS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-255-8
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Servando Pineda-Campos was convicted, pursuant to his guilty plea, of
conspiring to distribute and possess with intent to distribute 50 grams or more
of methamphetamine, and he was sentenced to a 112-month term of
imprisonment. His guilty plea was pursuant to an agreement in which he
waived the right to appeal his conviction and sentence with only limited
exceptions.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-10947
In his opening brief, Pineda-Campos asserts in a single sentence that his
guilty plea is invalid because the appeal waiver provision of his plea agreement
is ineffective. He devotes the remainder of the opening brief to an attack on
the validity of the appellate waiver provision, asserting that he was improperly
forced to waive his appellate rights in order to receive a reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b); see United States
v. Palacios, 756 F.3d 325 (5th Cir. 2014). In its brief, the Government avers
that it did not condition receipt of the third point for acceptance of
responsibility on Pineda-Campos’s waiver of appellate rights. The
Government also argues, that even if the waiver of appellate rights is
unenforceable, the judgment of the district court should still be affirmed
because Pineda-Campos has not complained of an error that affected his
conviction or his sentence.
Pineda-Campos’s attorney-prepared briefs are not entitled to liberal
construction. See Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Even
if an argument is asserted on appeal, the argument is deemed waived if it is
not adequately briefed. See United States v. Scroggins, 599 F.3d 433, 446-47
(5th Cir. 2010) (stating that “[i]t is not enough to merely mention or allude to
a legal theory” and concluding that the failure to brief an argument sufficiently
results in its waiver (internal quotation marks and citation omitted)). A party
must “clearly identify[] a theory as a proposed basis for deciding the case.” Id.
at 447. Further, arguments not presented in an appellant’s initial brief are
waived. See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007).
We will ordinarily not consider an argument raised for the first time in a reply
brief. See United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010).
In view of the foregoing, the only issue presented for this court’s review
is a challenge to the validity of the appellate waiver provision of Pineda-
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No. 14-10947
Campos’s plea agreement; any other arguments are waived. See Scroggins,
599 F.3d at 446-47. Our decisions establish, however, that the invalidity of an
appellate waiver provision does not necessitate vacatur of a defendant’s
conviction or sentence. See, e.g., United States v. Baty, 980 F.2d 977, 878-79
(5th Cir. 1992) (invalidating appeal waiver provision of plea agreement, but
affirming sentence). “[H]olding that an appeal waiver is involuntary does not
require striking down a guilty plea; instead, the involuntary appeal waiver can
be invalidated independent of the guilty plea.” United States v. Molina-
Borrayo, 569 F. App’x 232, 234 (5th Cir. 2014). Invalidation of an appellate
waiver thus only entitles the defendant to raise a claim of error on appeal. The
defendant must still show, of course, that an error existed. Campos-Pineda
has not done so.
Campos-Pineda cites to several unpublished cases in which we have
vacated and remanded for resentencing when defendants were improperly
denied the third point for acceptance of responsibility under § 3E1.1(b) based
on a refusal to waive their appellate rights. But he received the full three-
point reduction. He makes no argument that casts doubt on the voluntariness
of his guilty plea, and likewise he asserts no sentencing error. Because the
appellate waiver provision of the plea agreement is not being applied in this
matter, there is no need to consider Campos-Pineda’s attack on that provision.
See id.
The judgment of the district court is AFFIRMED.
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