United States v. Pecina , 213 F. App'x 320 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2007
Charles R. Fulbruge III
Clerk
No. 05-41737
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBALDINO PECINA, also known as Ruby,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-44-5
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Rubalindo Pecina appeals the sentence imposed because of his
guilty plea conviction of conspiracy to possess with intent to
distribute over five kilograms of cocaine in violation of 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(A). In his plea agreement,
Pecina waived the right to challenge his sentence, except in
limited circumstances not applicable here. The Government seeks
to enforce the waiver.
Pecina does not argue that his appeal waiver was unknowing
or involuntary. Rather, he argues that the waiver should not be
*
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this opinion should not be published and is not precedent except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. 05-41737
-2-
enforced on public policy grounds because he was not sentenced at
the bottom of the Guideline imprisonment range, contrary to the
Government’s recommendation under the plea agreement.
At his rearraignment, Pecina acknowledged the existence of
the plea agreement and the fact that he waived the right to
appeal his sentence. He also stated that he had read the plea
agreement before signing it, reviewed it with counsel, and that
he was entering into the plea voluntarily. Pecina acknowledged
that the district court was not bound by the Government’s
recommendation with regard to the sentence. Accordingly,
Pecina’s appeal is barred by the waiver contained in the plea
agreement. See United States v. Portillo, 18 F.3d 290, 292 (5th
Cir. 1994). We have not considered Pecina’s contention that the
district court’s sentence was unreasonable.
AFFIRMED.