United States v. Pena ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30646
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO PENA, also known as Wado, also known as Nelson
Torres,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CR-145-2)
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May 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Eduardo Pena appeals his guilty-plea conviction and sentence
for murder in furtherance of a continuing criminal enterprise,
conspiracy to possess with intent to distribute cocaine
hydrochloride, conspiracy to possess with intent to distribute
marijuana, conspiracy to use and carry a firearm, conspiracy to
launder money, and aiding and abetting. Pena did not file his
notice of appeal within ten days of entry of judgment. See Fed. R.
*
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this opinion should not be published and is not precedent except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.
App. P. 4(b)(1). Jurisdiction is therefore at issue. See United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). It is not
clear whether the appeal period was tolled by Pena’s postjudgment
motion to vacate his sentence and withdraw his guilty plea. See
United States v. Carmouche, 138 F.3d 1014 (5th Cir. 1998); United
States v. Brewer, 60 F.3d 1142, 1143-44 (5th Cir. 1995); Fed. R.
Crim. P. 32(e). We need not reach this issue, however, because
Pena’s appeal is frivolous. See e.g., Alvarez, 210 F.3d at 310.
We lack jurisdiction to review the district court’s decision not to
depart downward from the guideline range because the district court
did not base its decision on an erroneous belief that it lacked the
authority to depart. United States v. Landerman, 167 F.3d 895, 899
(5th Cir. 1999).
Under Fed. R. Crim. P. 32(e), Pena’s post-sentencing request
to withdraw his plea or vacate his sentence must be made either on
direct appeal or pursuant to a § 2255 motion. The plea agreement
precludes him from appealing his sentence or filing a § 2255
motion, however, unless his sentence exceeds the statutory maximum
penalty or constitutes an upward departure from the guidelines. As
the district court sentenced Pena within the applicable guideline
range, he is not entitled to move to vacate his sentence or
withdraw his guilty plea. Fed. R. Crim. P. 32(e).
2
Pena’s appeal is without arguable merit and frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). We therefore
dismiss it. See 5th Cir. R. 42.2.
APPEAL DISMISSED.
3