United States v. Jorge Rodriguez-Zamora ( 2015 )

Case: 14-10620 Document: 00513091325 Page: 1 Date Filed: 06/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10620
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 24, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JORGE RODRIGUEZ-ZAMORA, also known as Fred, also known as Jorge
Tapia Villa,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-320-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jorge Rodriguez-Zamora (Rodriguez) appeals his conviction and
sentence for conspiracy to possess with intent to distribute 500 grams or more
of methamphetamine. He argues that the appeal waiver should not be
enforced due to the fact that his guilty plea was invalid because the magistrate
judge failed to make a sufficient inquiry into whether the plea was voluntary.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10620
He also argues that the district court misapplied U.S.S.G. § 5K1.1 when
determining the extent of the departure in this case. The Government invokes
the appeal waiver.
As Rodriguez correctly concedes, his challenge to the voluntariness of his
guilty plea is reviewed for plain error. To show plain error, the appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant
makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
The record reflects that the magistrate judge adequately questioned
Rodriguez regarding the voluntariness of the plea. See FED. R. CRIM. P.
11(b)(2). “Rule 11 does not specifically require that the trial judge inquire as
to the defendant’s use of medication.” United States v. Adam, 296 F.3d 327,
333 (5th Cir. 2002). Nevertheless, the magistrate judge questioned Rodriguez
about his medical history and the use of medication, drugs, and alcohol.
Rodriguez informed the court that he was not under the influence any
substance that might affect his ability to understand the proceedings.
Rodriguez’s statements at the rearraignment hearing with respect to his
competence and the voluntariness of his plea carry a strong presumption of
verity. See Adam, 296 F.3d at 333. Thus, no error is apparent, plain or
otherwise. Moreover, Rodriguez merely contends that his medication might
have affected the voluntariness of his plea, not that it actually did. Thus,
Rodriguez has not shown that his substantial rights were affected. See United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The record reflects that the waiver was knowing and voluntary. See
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Rodriguez waived all
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Case: 14-10620 Document: 00513091325 Page: 3 Date Filed: 06/24/2015
No. 14-10620
of his appeal rights except the right to bring a direct appeal of a sentence that
exceeded the statutory maximum or resulted from an arithmetic error at
sentencing, to challenge the voluntariness of his guilty plea or the waiver
provision, and to bring a claim of ineffective assistance of counsel. The
argument he seeks to raise on appeal, that the district court misapplied
U.S.S.G. § 5K1.1 when determining the extent of the departure in this case
does not fall within any of the exceptions contained in the waiver. Thus, that
argument is barred by the plea agreement. See Bond, 414 F.3d at 544.
The Government has invoked the appeal waiver to bar Rodriguez’s
appeal. Therefore, Rodriguez is bound by the appeal waiver. See United States
v. Story, 439 F.3d 226, 231 (5th Cir. 2006). Accordingly, the appeal is
dismissed. See id. at 230-31 & n.5; see also United States v. Walters, 732 F.3d
489, 490 (5th Cir. 2013), cert. denied, 134 S. Ct. 1349 (2014).
APPEAL DISMISSED.
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