United States v. Rodriguez ( 2022 )


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  • Case: 21-10812     Document: 00516382016         Page: 1     Date Filed: 07/05/2022
    United States Court of Appeals
    for the Fifth Circuit                               United States Court of Appeals
    Fifth Circuit
    FILED
    No. 21-10812                             July 5, 2022
    Summary Calendar                         Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Johnny Roy Rodriguez, Jr.,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:20-CR-339-23
    Before Wiener, Dennis, and Haynes, Circuit Judges.
    Per Curiam:*
    Johnny Roy Rodriguez, Jr., pleaded guilty to conspiracy to possess
    with intent to distribute 50 grams or more of a mixture and substance
    containing a detectable amount of methamphetamine.            Shortly before
    sentencing, he moved to withdraw his guilty plea, which the district court
    *
    Pursuant to 5th Circuit Rule 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    opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
    Case: 21-10812      Document: 00516382016           Page: 2   Date Filed: 07/05/2022
    No. 21-10812
    denied without a hearing. He ultimately was sentenced to 480 months of
    imprisonment.
    In his first issue on appeal, Rodriguez challenges the district court’s
    decision denying his withdrawal motion. A defendant may withdraw a guilty
    plea after it has been accepted by the district court but before sentencing if
    he shows a “fair and just reason” for seeking withdrawal. Fed. R. Crim.
    P. 11(d)(2)(B). Although Rodriguez generally waived his right to appeal as
    part of a plea agreement, because the Government does not seek to enforce
    the waiver as to this issue, see United States v. Story, 
    439 F.3d 226
    , 231 (5th
    Cir. 2006), we review the denial of the motion to withdraw the plea for an
    abuse of discretion, United States v. Strother, 
    977 F.3d 438
    , 443 (5th Cir.
    2020). Our review of the record, Rodriguez’s arguments, and the factors
    originally set forth in United States v. Carr, 
    740 F.2d 339
    , 343-44 (5th Cir.
    1984), shows no abuse of discretion by the district court in denying
    Rodriguez’s motion to withdraw his plea. See Strother, 977 F.3d at 443-47.
    Therefore, the denial of his motion is affirmed.
    Rodriguez also contends that the imposition of a sentence of 480
    months, which was a guidelines sentence, was greater than necessary under
    
    18 U.S.C. § 3553
    (a). The Government argues that Rodriguez’s substantive
    reasonableness challenge to his sentence is barred by the waiver of appeal
    provision and that this portion of his appeal should be dismissed. We review
    de novo whether an appeal waiver bars an appeal. United States v. Keele, 
    755 F.3d 752
    , 754 (5th Cir. 2014). First, we consider whether the waiver was
    knowing and voluntary and, second, we consider whether the plain language
    of the waiver applies to the issues to be raised on appeal. 
    Id.
    For a waiver to be knowing and voluntary, a defendant must know that
    he had a right to appeal and that he was giving up that right. See United States
    v. Portillo, 
    18 F.3d 290
    , 292 (5th Cir. 1994). Based on the plea agreement and
    2
    Case: 21-10812      Document: 00516382016          Page: 3   Date Filed: 07/05/2022
    No. 21-10812
    the advice he received at rearraignment, Rodriguez’s waiver was knowing
    and voluntary. See 
    id.
     Next, Rodriguez generally waived his right to appeal
    his conviction and sentence, with certain exceptions that do not apply to the
    issue he raises. Based on the plain language of the plea agreement, the appeal
    waiver bars this challenge to his sentence. See Keele, 755 F.3d at 754.
    Therefore, this portion of his appeal is dismissed. See Story, 
    439 F.3d at
    230-
    31 & n.5.
    Rodriguez briefly argues that, despite the appeal waiver, he should be
    allowed to appeal his 480-month sentence “in the interest of justice.”
    Although he does not cite any caselaw in support, some circuits do recognize
    a “miscarriage of justice” exception. United States v. Barnes, 
    953 F.3d 383
    ,
    389 (5th Cir. 2020). We have declined to explicitly adopt or reject this
    exception. 
    Id.
     In addition, because Rodriguez has “only briefly allud[ed] to
    that theory,” we conclude that he “has waived any contention that such an
    exception applies.” 
    Id.
    AFFIRMED IN PART; DISMISSED IN PART. Rodriguez’s
    pro se motion to appoint new counsel is DENIED as untimely. See United
    States v. Wagner, 
    158 F.3d 901
    , 902-03 (5th Cir. 1998).
    3
    

Document Info

Docket Number: 21-10812

Filed Date: 7/5/2022

Precedential Status: Non-Precedential

Modified Date: 7/6/2022