United States v. Fernandez ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 3, 2002
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-20602
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORIBIO FERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H:95-CR-142-15
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Toribio Fernandez appeals his guilty-plea conviction and life
sentence for conspiracy to possess with intent to distribute more
than 1000 kilograms of marijuana. Fernandez acknowledges that in
his written plea agreement he made an otherwise valid waiver of his
right to appeal his sentence, but he contends that the waiver is
without effect because the plea agreement is invalid. He also
asserts that the district court abused its discretion in refusing
*
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this opinion should not be published and is not precedent except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.
to allow him to withdraw his plea and that the district court
misapplied the Sentencing Guidelines.
Appellant first argues that the plea agreement is invalid as
an unconscionable contract of adhesion, essentially because he
received a life sentence. Even if pleading guilty in the face of
a certain life sentence is unconscionable, Fernandez’s case does
not present that scenario. Rather, the plea bargain into which
Appellant entered included only the risk of a life sentence.
Pursuant to the agreement, the government agreed to recommend a
sentence at the low end of the guidelines range, in addition to
dismissing the other charges against him and foregoing forfeiture
of a ranch Fernandez’s father allegedly owned unless forfeiture was
later justified by new information. Thus, we find no
unconscionable terms in the agreement. Furthermore, the mere fact
that he received a harsher sentence than what he subjectively
expected to receive does not invalidate the agreement.1 Fernandez
was fully informed that he faced a potential life sentence,
depending on the presentence investigation.2 He stated that he
understood that he would not be allowed to withdraw his plea if the
sentence was more severe than he expected. Fernandez has therefore
failed to show that the plea agreement is invalid due to the
1
Daniel v. Cockrell, 283 F.3d 697, 703-04 (5th Cir.), cert.
denied, – U.S. –, 2002 WL 1434299 (Oct. 7, 2002).
2
In the plea colloquy, the district court explained to
Fernandez that he was susceptible to a sentence anywhere from 10
years to life.
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unconscionability of its terms.
Fernandez also contends that the plea was invalid due to an
insufficient factual basis. However, the factual basis appearing
in the record was “sufficiently specific to allow the court to
determine that the defendant’s conduct was within the ambit of that
defined as criminal.”3 At the rearraignment, the government
described the conspiracy to distribute more than 1000 kilograms of
marijuana and stated that Fernandez helped to transport marijuana
and to buy a vehicle used for transporting it. Appellant
corroborated these statements under oath. The testimony
establishes that Fernandez participated in the crime to which he
pleaded–a conspiracy to possess with intent to distribute more than
1000 kilograms of marijuana.
Fernandez also contends that the plea agreement is invalid
because the district court did not expressly accept or reject the
agreement at the rearraignment. The district court implicitly
accepted the agreement, however, by not rejecting it and by
ensuring that Fernandez received the benefit of the agreement
through the promised dismissal of the other counts against him.4
3
United States v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir.
1977).
4
United States v. Morales-Sosa, 191 F.3d 586, 588 (5th Cir.
1999) (“We are also persuaded by the government's argument that the
district court did in fact implicitly accept the plea agreement.
Had the district court rejected Sosa's agreement, the court would
have been required, under Rule 11(e)(4), to inform the parties of
this fact and to advise Sosa personally that the court was not
bound by the agreement. Here, the fact that the district court did
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Appellant additionally asserts that the plea was induced by
fraud. After a hearing, the district court rejected Fernandez’s
assertions of fraud in the inducement based on a finding that
Fernandez lacked any credibility. We will not second-guess the
district court’s credibility assessment.5
Fernandez also appeals the district court’s denial of his
motion to withdraw the guilty plea. We review the ruling for an
abuse of discretion.6 Fernandez failed to carry his burden of
establishing a fair and just reason for withdrawing his plea.7
Based on Fernandez’s lack of credibility, the district court
determined that the plea was knowing and voluntary and not the
result of ineffective assistance of counsel.
As Fernandez acknowledges, if his plea agreement is valid, so
is his waiver of his right to appeal his sentence. The plea and
the agreement are valid; therefore Appellant has waived his right
to challenge the district court’s calculation of the sentence.
Consequently, we need not address his contentions that the court
misapplied the Sentencing Guidelines.
not follow the procedures of Rule 11(e)(4) coupled with the fact
that, immediately following sentencing, Sosa received the benefits
of the plea agreement in the dismissal of the original indictment
and a downward departure from the applicable guidelines, indicate
that the court implicitly accepted the plea agreement.”).
5
United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).
6
United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991).
7
United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988).
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AFFIRMED.
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