United States v. Antonio Flores ( 2019 )

Case: 18-10403 Document: 00514927613 Page: 1 Date Filed: 04/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10403 FILED
Summary Calendar April 23, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO FLORES, also known as Felipe Gallegos,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-279-1
Before JONES, HIGGINSON, and WILLETT, Circuit Judges.
PER CURIAM: *
Antonio Flores appeals the below-guidelines sentence of 216 months of
imprisonment he received after pleading guilty, pursuant to a plea agreement,
to conspiracy to possess with intent to distribute methamphetamine. He
argues that the district court erred in applying certain guideline
enhancements. Flores also raises a claim of ineffective assistance of counsel.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10403 Document: 00514927613 Page: 2 Date Filed: 04/23/2019
No. 18-10403
The Government argues that the appeal is barred by the appeal waiver in the
plea agreement.
We review de novo whether an appeal waiver bars an appeal. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). The record shows that the
waiver was knowing and voluntary. See id. at 754-55.
Flores asserts that the appeal waiver is unenforceable because the
sentencing determination was not made in accordance with existing law and
the terms of the plea agreement. That argument is unavailing as the district
court complied with the plea agreement by considering the guidelines
calculation, and Flores’s objections to it, when sentencing him.
Additionally, Flores argues that a miscarriage of justice exception to the
waiver should apply and that the waiver is void as a matter of public policy
because appellate review of sentences is a necessary component of the advisory
Guidelines as set forth in United States v. Booker, 543 U.S. 220 (2005).
However, we repeatedly have declined to apply the miscarriage of justice
exception. See, e.g., United States v. Arredondo, 702 F. App’x 243, 244 (5th Cir.
2017), cert. denied, 138 S. Ct. 1713 (2018); United States v. De Cay, 359 F. App’x
514, 516 (5th Cir. 2010). Also, we have upheld broad appeal waivers like the
one in post-Booker cases. See, e.g., United States v. Pizzolato, 655 F.3d 403,
405 (5th Cir. 2011).
Flores also argues that his counsel was ineffective for not objecting to the
firearm enhancement. The appeal waiver contained an exception for claims of
ineffective assistance of counsel. However, the claim was not developed
sufficiently in the district court to evaluate this claim. We therefore decline to
consider Flores’s ineffective assistance of counsel claim without prejudice to
his right to assert his claim on collateral review. See United States v. Isgar,
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Case: 18-10403 Document: 00514927613 Page: 3 Date Filed: 04/23/2019
No. 18-10403
739 F.3d 829, 841 (5th Cir. 2014); United States v. Higdon, 832 F.2d 312, 314
(5th Cir. 1987).
As it is barred by the appeal waiver, the appeal is DISMISSED.
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