United States v. Arnoldo Lopez , 620 F. App'x 345 ( 2015 )

Case: 14-50797 Document: 00513245256 Page: 1 Date Filed: 10/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50797 FILED
Summary Calendar October 23, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARNOLDO LOUIS LOPEZ, also known as “Looney”, also known as Arnoldo
Lopez, also known as Arnoldo L. Lopez,
Defendant-Appellant
_______________________________________________________________________
CONSOLIDATED WITH No. 14-50800
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARNOLDO LOPEZ, also known as Arnoldo Louis Lopez, also known as Looney,
also known as Arnoldo L. Lopez,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-860
Case: 14-50797 Document: 00513245256 Page: 2 Date Filed: 10/23/2015
No. 14-50797 c/w No. 14-50800
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
In this consolidated appeal, Arnoldo Louis Lopez challenges his guilty-
plea convictions and sentences for possessing with the intent to distribute
cocaine base and possessing a firearm in furtherance of a drug trafficking
offense. He argues that his guilty pleas were not knowing and voluntary; he
was subject to prosecutorial misconduct at his sentencing hearing; and the
sentence imposed was substantively unreasonable.
Lopez also challenges the sentence imposed following his guilty plea
convictions of conspiring to make, and actually making, false statements on
records of a licensed federal firearms dealer. In that case, he again contends
that he was subject to prosecutorial misconduct during the sentencing hearing.
Lopez did not raise any these arguments in the district court. This court
therefore will review his claims for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009).
Lopez has not established reversible plain error with regard to his
argument that his guilty pleas were not knowing and voluntary. He correctly
points out that the district court erred by failing to advise him that his
statements under oath could be used against him in a prosecution for perjury.
See FED. R. CRIM. P. 11(b)(1)(A). But Lopez has not established a reasonable
probability that such a warning would have resulted in him not pleading
guilty. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The Government maintains that we should not consider Lopez’s
challenges to the substantive reasonableness of his sentence in the drug case
* 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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Case: 14-50797 Document: 00513245256 Page: 3 Date Filed: 10/23/2015
No. 14-50797 c/w No. 14-50800
because Lopez waived, as part of his plea agreement, his right to challenge the
sentence. A review of the record confirms that Lopez’s guilty plea and waiver
of appeal were knowing and voluntary and should be enforced. See United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992); United States v. Portillo,
18 F.3d 290, 292 (5th Cir. 1994). Accordingly, we will not consider the
reasonableness challenge.
Lopez’s appeal waiver contains an exception for claims of prosecutorial
misconduct. Consequently, we will consider Lopez’s claims in both cases that,
at sentencing, the prosecutor improperly elicited testimony concerning, and
commented on, Lopez’s association with the Zeta cartel. Lopez has not,
however, established that the prosecutor’s actions constituted error, plain or
otherwise. See United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007).
The judgments of the district court are AFFIRMED.
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