United States v. Julio Cardenas ( 2013 )

Case: 12-50326 Document: 00512285936 Page: 1 Date Filed: 06/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 25, 2013
No. 12-50326
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JULIO CARDENAS,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-151-1
Before BARKSDALE, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Pursuant to his guilty-plea conviction for conspiracy to possess, with intent
to distribute, cocaine, Julio Cardenas received a within-Guidelines sentence of
204 months’ imprisonment. Cardenas’ written plea agreement contained an
appeal waiver. One of the two exceptions was for an ineffective-assistance-of-
counsel claim.
Cardenas contends his plea was unknowing because the district court
violated Federal Rule of Criminal Procedure 11(b)(1)(M) when it failed to explain
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50326
the concept of relevant conduct. This contention is permitted despite the appeal
waiver, because such a waiver does not prevent defendant from contending on
appeal that his plea agreement, including the waiver itself, was not entered into
knowingly. See United States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011)
(allowing unknowing-plea challenge despite existence of appeal waiver).
Because Cardenas did not present his unknowing-plea contention in
district court, review is only for plain error. United States v. Vonn, 535 U.S. 55,
59 (2002). For reversible plain error, Cardenas must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). To determine whether the claimed violation of
Rule 11 affected Cardenas’ substantial rights, our court considers whether there
is a “reasonable probability” he would not have pleaded guilty “but for the error”.
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The district court substantially complied with Rule 11. In particular, it
explained to Cardenas that he faced a sentence which included: up to 20 years’
imprisonment; a fine of up to $1 million; three years’ to life supervised release;
and a special assessment of $100. See FED. R. CRIM. P. 11(b)(1)(H)-(L).
Moreover, the court explained that it was obligated to: calculate the advisory
Guidelines sentencing range; consider that range and other sentencing factors
under 18 U.S.C. § 3553(a); and consider possible departures under the
Guidelines. See FED. R. CRIM. P. 11(b)(1)(M). Because Cardenas was aware of
the maximum sentence he faced, his alleged mistaken belief that his sentence
would not be enhanced based on his relevant conduct did not render his plea
involuntary. See United States v. Jones, 905 F.2d 867, 868-69 (5th Cir. 1990)
(where defendant understands maximum sentence, he is “fully aware of his
plea’s consequences” (internal quotation marks and citation omitted)).
To the extent Cardenas contends he is entitled to relief because he lacked
close assistance of counsel and/or received ineffective assistance of counsel, he
fails to adequately brief those contentions. He cites to neither the record nor
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No. 12-50326
legal authorities to support them; therefore, they are abandoned. E.g., Davila v.
United States, 713 F.3d 248, 261 (5th Cir. 2013); FED. R. APP. P. 28(a)(9). In the
alternative, the record is developed insufficiently to allow consideration of such
contentions. They generally “cannot be resolved on direct appeal when the claim
has not been raised before the district court since no opportunity existed to
develop the record on the merits of the allegations”. United States v. Cantwell,
470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation
omitted).
AFFIRMED.
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