United States v. Garcia-Coronado , 108 F. App'x 939 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 14, 2004
Charles R. Fulbruge III
Clerk
No. 03-40228
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO GARCIA-CORONADO, also known as Poncho,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-377-1
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Alfonso Garcia-Coronado (Garcia) appeals the sentence
imposed by the district court after he pleaded guilty to two
counts of a nine-count superseding indictment charging that he
conspired to transport and harbor aliens for financial gain and
that he was a felon in possession of a firearm. He first argues
that the district court incorrectly applied the sentencing
guidelines by assessing him a nine-level adjustment based on a
factual finding that he transported more than 100 aliens.
*
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this opinion should not be published and is not precedent except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.
No. 03-40228
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Garcia entered into a plea agreement wherein he waived his
right to appeal a sentence imposed within the guidelines range.
Although neither party addresses the waiver, we will do so
because a waiver of the right to appeal would deprive this court
of jurisdiction. See United States v. Martinez, 263 F.3d 436,
438 (5th Cir. 2001).
A defendant may waive his right to appeal as part of a valid
plea agreement if the waiver is knowing and voluntary. United
States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). The
defendant must know that he “had a right to appeal his sentence
and that he was giving up that right.” United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994)(internal quotations
and citation omitted); see also FED. R. CRIM. P. 11(c)(6)
(the district court has a duty to advise the defendant of the
terms of the waiver-of-appeal provision)(version applicable to
guilty pleas entered prior to Dec. 1, 2002). An appeal in
contravention of the waiver provision should be dismissed.
United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).
Garcia’s argument that the district court erred in its fact-
finding regarding the number of aliens smuggled “is plainly
waived by the agreement.” See Martinez, 263 F.3d at 438.
Moreover, the record demonstrates that the district court
complied with FED. R. CRIM. P. 11(c)(6) by advising Garcia of the
terms of the waiver-of-appeal provision. Garcia indicated that
he knew the rights he was giving up under the terms of the plea
No. 03-40228
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agreement. Because the waiver was knowing and voluntary, it will
be enforced. See Melancon, 972 F.2d at 568.
Garcia’s second argument is that the 120-month sentence he
received on the firearms count amounted to an unjustified upward
departure. Because Garcia preserved his right to appeal a
sentence not within the guidelines range, this court must
determine whether the sentence was within the guidelines range or
whether it amounted to an upward departure from that range.
When multiple counts are contained in the same indictment,
“the sentence imposed on each count shall be the total punishment
as determined in accordance with Part D of Chapter Three, and
Part C of [Chapter Five].” U.S.S.G. § 5G1.2(b) & comment. (n.1).
The “total punishment” is determined by combining the offense
levels for the offenses, “taking the offense level applicable to
the Group with the highest offense level and increasing that
offense level” in accordance with the table in § 3D1.4. U.S.S.G.
§§ 3D1.4, 3D1.5. “If the sentence imposed on the count carrying
the highest statutory maximum is adequate to achieve the total
punishment, then the sentences on all counts shall run
concurrently . . . .” U.S.S.G. § 5G1.2(c).
The 120-month term of imprisonment on the firearms count was
not the result of an upward departure, but rather the result of
the district court’s correct application of the sentencing
guidelines. Accordingly, Garcia’s challenge to the sentence is
waived under the terms of the plea agreement. Garcia’s argument
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that Blakely v. Washington, 124 S. Ct. 2531 (2004), provides
additional grounds for reversal of his sentence is foreclosed in
this court. See United States v. Pineiro, No. 03-30437, 2004 WL
154170, *1 (5th Cir. July 12, 2004). The appeal is DISMISSED.
See Martinez, 263 F.3d at 439.
APPEAL DISMISSED.