United States v. Edrei Alvarez-Lopez , 604 F. App'x 350 ( 2015 )

Case: 14-40775 Document: 00513057593 Page: 1 Date Filed: 05/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-40775
Fifth Circuit
FILED
Summary Calendar May 28, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
EDREI ALVAREZ-LOPEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-211
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Edrei Alvarez-Lopez pleaded guilty to conspiring to possess, with intent
to distribute, more than 100 kilograms of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846. The presentence investigation report stated
Alvarez was responsible for 162.35 kilograms of marijuana; it used the 2013
Sentencing Guidelines to calculate his advisory Guidelines-sentencing range.
That advisory range, which included a two-level safety-valve reduction, was
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-40775
37-46 months’ imprisonment. The district court imposed, inter alia, 37 months’
imprisonment. Alvarez challenges his guilty-plea conviction and sentence.
In challenging his conviction, Alvarez claims his guilty plea was
unknowing and involuntary because the district court failed to admonish him,
pursuant to Federal Rule of Criminal Procedure 11(b)(1)(D), that he had the
right to self-representation. He also contends he was not made aware that
counsel had been appointed for him. Because he raises this issue for the first
time on appeal, review is only for plain error. E.g., United States v. Vonn, 535
U.S. 55, 59 (2002). Under that standard, Alvarez must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id.
The right to counsel and the right to self-representation are distinct
rights, Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982); and Rule
11(b)(1)(D) does not require an admonishment regarding the right to self-
representation, Fed. R. Crim. P. 11(b)(1)(D) (requiring admonishment about
right to representation by counsel and possible court-appointed counsel).
Alvarez refused to waive his right to counsel, averred he was indigent, and
affirmatively requested appointment of counsel. And, he concedes nothing in
the record shows he intended to represent himself in district court. Therefore,
there is no clear or obvious error. E.g., Brown, 665 F.2d at 610-11.
For Alvarez’ challenge to his sentence, and although post-Booker, the
Guidelines are advisory only, and a properly preserved objection to an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion
standard, the district court must still properly calculate the advisory
Guidelines-sentencing range for use in deciding on the sentence to impose.
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No. 14-40775
Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Alvarez claims the court, at sentencing on 17 July 2014, improperly
calculated his Guidelines-sentencing range by failing to grant the parties’ joint
request that he receive an additional two-level reduction based on the lower
base-offense levels for drug-related offenses that were to, and did, take effect
in November 2014 under Amendment 782 to the Guidelines. It is unclear
whether Alvarez preserved this challenge to the procedural reasonableness of
his sentence. Because Alvarez has not shown error, the standard of review
need not be decided. E.g., United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008).
The court correctly used the Guidelines in effect at the time of Alvarez’
sentencing. See, e.g., United States v. Martin, 596 F.3d 284, 286 (5th Cir. 2010).
But, Amendment 782 will become retroactively applicable on 1 November
2015. U.S.S.G., Supp. to App’x. C, Amend. 788. Thus, in the future, Alvarez
may seek a reduction of his sentence, pursuant to 18 U.S.C. § 3582(c)(2); but,
he cannot obtain relief in direct appeal. Martin, 596 F.3d at 286.
AFFIRMED.
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