United States v. Ignacio Andrade-Lopez ( 2019 )

Case: 18-20280 Document: 00515008080 Page: 1 Date Filed: 06/24/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20280
FILED
June 24, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
IGNACIO ANDRADE-LOPEZ, also known as Tio,
Defendant-Appellant
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Consolidated with 18-20282
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
IGNACIO ANDRADE-LOPEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-177-1
USDC No. 4:16-CR-578-1
Case: 18-20280 Document: 00515008080 Page: 2 Date Filed: 06/24/2019
No. 18-20280
c/w No. 18-20282
Before STEWART, Chief Judge, and SOUTHWICK and GRAVES, Circuit
Judges.
PER CURIAM: *
Ignacio Andrade-Lopez pleaded guilty in separate cases to one count of
conspiracy to possess with the intent to distribute 50 grams or more of
methamphetamine (Houston case) and one count of conspiracy to possess with
the intent to distribute methamphetamine (Dallas case). He was sentenced to
concurrent sentences of 262 months of imprisonment and four years of
supervised release. Andrade-Lopez timely appealed. See FED. R. APP.
P. 4(b)(1)(A)(i). The Government’s motion to consolidate the cases on appeal
was granted.
Andrade-Lopez argues that his guilty pleas in both cases were
unknowing and involuntary due to the district court’s failure to properly
admonish him pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
As acknowledged by Andrade-Lopez, this court reviews his allegations of Rule
11 error raised for the first time on appeal for plain error. See United States v.
Vonn, 535 U.S. 55, 59 (2002). To prevail on plain error review, Andrade-Lopez
must show (1) a forfeited error (2) that is clear or obvious, i.e., not “subject to
reasonable dispute,” and (3) that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If Andrade-Lopez shows such an error,
then this court “has the discretion to remedy the error . . . if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citations omitted).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Although the district court deviated from the requirements of
Rule 11(b)(1)(O) in both of his cases, Andrade-Lopez was advised via his plea
agreements about the potential immigration consequences he faced upon
conviction. See FED. R. CRIM. P. 11(b)(1)(O); United States v. Cuevas-Andrade,
232 F.3d 440, 444-45 (5th Cir. 2000). Moreover, Andrade-Lopez was advised
via his presentence report (PSR) that his guilty pleas could result in
immigration consequences if he was a noncitizen. See United States v.
Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999). Thus, even assuming that
the district court’s errors in failing to provide the Rule 11(b)(1)(O)
admonishment at Andrade-Lopez’s rearraignments constituted clear or
obvious errors, Andrade-Lopez has failed to demonstrate that he would have
pleaded differently absent the errors. See United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
Similarly, Andrade-Lopez was advised via his plea agreement in his
Houston case of the district court’s obligation to calculate the guidelines range
and to consider that range, any possible departures, and other sentencing
factors under 18 U.S.C. § 3553(a). See FED. R. CRIM. P. 11(b)(1)(M); Cuevas-
Andrade, 232 F.3d at 444-45. Additionally, he was informed at rearraignment
that he faced a statutory minimum sentence of 10 years and a maximum of
life. Thus, he was fully aware of the consequences of his plea. See United
States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990).
Additionally, the record indicates that Andrade-Lopez read and
understood his plea agreement and raised no questions regarding the waiver-
of-appeal provision. Moreover, the appeal-waiver provision was mentioned in
Andrade-Lopez’s PSR. See Vasquez-Bernal, 197 F.3d at 171. Thus, to the
extent that Andrade-Lopez challenges the validity of the appeal-waiver
provision in his plea agreement, the waiver is valid and enforceable. See
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United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). To the extent
that he challenges the validity of his guilty plea, Andrade-Lopez fails to show
that any purported Rule 11 error affected his substantial rights. See
Dominguez Benitez, 542 U.S. at 83.
With respect to Andrade-Lopez’s Dallas case, there was sufficient
evidence to permit a finding that he was involved in a narcotics conspiracy.
See FED. CRIM. P. 11(b)(3); United States v. Hildenbrand, 527 F.3d 466, 474-75
(5th Cir. 2008). However, even if the district court erred by failing to elicit
Andrade-Lopez’s admission of facts sufficient to establish that he conspired to
possess with the intent to distribute methamphetamine, he has failed to show
that he was prejudiced by the district court’s error. Andrade-Lopez did not
attempt to withdraw his guilty plea at any time before the district court and
he does not do so on appeal. He does not request the opportunity to go to trial
nor has he directed this court to any portion of the record demonstrating that
his plea decision was affected by the alleged error. Thus, he has failed to
demonstrate a reasonable probability that he would not have pled guilty if the
district court had solicited his admission of additional facts to support his plea.
See Dominguez Benitez, 542 U.S. at 83.
The Government concedes that the district court imposed a sentence
above the statutory maximum in Andrade-Lopez’s Dallas case, Case No. 18-
20282. See 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C). Applying the concurrent
sentence doctrine, we vacate the sentence in Andrade-Lopez’s Dallas case and
remand with instructions to the district court to suspend imposition of this
sentence. See United States v. Stovall, 825 F.2d 817, 824, 827 (5th Cir.),
amended on other grounds by 833 F.2d 526 (5th Cir. 1987).
Additionally, the district court is instructed to correct a clerical error
with respect to the offense of conviction in the written judgment in Andrade-
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Lopez’s Dallas case. See FED. R. CRIM. P. 36. The district court’s judgment
misidentifies the offense of conviction as one for conspiracy to possess with the
intent to distribute 500 grams or more of methamphetamine whereas the
offense of conviction is correctly identified as a conviction for conspiracy to
possess with the intent to distribute methamphetamine, a violation of §§ 846,
841(a)(1) and (b)(1)(C).
AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH
INSTRUCTIONS.
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