United States v. Pedro Herrera-Alvarado ( 2018 )

Case: 17-20171 Document: 00514520558 Page: 1 Date Filed: 06/20/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-20171
Fifth Circuit
FILED
June 20, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
PEDRO HERRERA-ALVARADO, also known as Alfredo Betron-Alvarado, also
known as Javier Aviles-Rebollar, also known as Gustavo Galicia-Alcantra, also
known as Kiki, also known as Jose,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-44-3
Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Pedro Herrera-Alvarado appeals his guilty plea conviction and sentence
for conspiracy to possess with intent to distribute one kilogram or more of a
mixture or substance containing a detectable amount of heroin, in violation of
21 U.S.C. §§ 841(b)(1)(A)(i) & 846. He contends that the district court failed
to: (1) ensure that he understood the nature of the charge; (2) comply with
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20171 Document: 00514520558 Page: 2 Date Filed: 06/20/2018
No. 17-20171
Federal Rule of Criminal Procedure 11 at a November 20, 2015 rearraignment,
which rendered his guilty plea invalid; and (3) determine that he understood
the terms of his appeal waiver.
Herrera-Alvarado’s unpreserved challenges are subject to plain error
review. See Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429
(2009). First, in compliance with Rule 11(b)(1)(G), the district court confirmed
Herrera-Alvarado’s understanding of the elements of the offense and the
Government’s recitation of facts. See United States v. Lujano-Perez,
274 F.3d 219, 224 (5th Cir. 2001). The court also ensured Herrera-Alvarado’s
understanding of the plea agreement, which he signed and which contained a
factual basis. See id. As for Herrera-Alvarado’s arguments about the
November 2015 rearraignment, that rearraignment was for his brother, a
coconspirator. The record does not indicate that Herrera-Alvarado was even
present in the courtroom at his brother’s rearraignment, and his arguments
are unavailing. Finally, in compliance with Rule 11(b)(1)(N), the district court
confirmed Herrera-Alvarado’s understanding of the terms of his appeal waiver.
See United States v. Higgins, 739 F.3d 733, 737 (5th Cir. 2014); United States
v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Given the lone exception to
the appeal waiver for ineffective assistance claims, the district court’s
characterization of the waiver as “virtually” comprehensive was accurate. See
Higgins, 739 F.3d at 737; McKinney, 406 F.3d at 746.
In light of the valid appeal waiver, Herrera-Alvarado’s appeal is
DISMISSED.
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