United States v. Otoniel Flores-Porras , 713 F. App'x 359 ( 2018 )

Case: 16-50508 Document: 00514363907 Page: 1 Date Filed: 02/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50508
Fifth Circuit
FILED
Summary Calendar February 27, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
OTONIEL FLORES-PORRAS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-2958-2
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Otoniel Flores-Porras pleaded guilty, pursuant to an agreement, to
(1) conspiring to possess a controlled substance with intent to distribute, and
(2) conspiring to launder monetary instruments. His punishments included
concurrent sentences of 63 months of imprisonment. On appeal, Flores-Porras
argues that the district court erred by failing to give him credit for the time he
was in detention in Mexico prior to being extradited to the United States,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-50508 Document: 00514363907 Page: 2 Date Filed: 02/27/2018
No. 16-50508
resulting in an unreasonable sentence. The Government seeks enforcement of
the appeal-waiver provision of the plea agreement.
We review the validity of an appeal waiver de novo. United States
v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). In assessing the enforceability
of an appeal waiver, we determine whether the waiver is knowing and
voluntary and “whether the waiver applies to the circumstances at hand, based
on the plain language of the agreement.” United States v. Bond, 414 F.3d 542,
544 (5th Cir. 2005). For an appeal waiver to be knowing and voluntary, the
defendant must know that he has the right to appeal and that he is giving up
that right. United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005).
At rearraignment, Flores-Porras was specifically advised of the waiver-
of-appeal provision contained in his plea agreement, and he indicated both that
he was aware that he had the right to appeal and that he was agreeing to waive
the right to appeal except in limited circumstances, which are inapplicable
here. There is nothing in the record to suggest that Flores-Porras “did not
understand or was confused by the waiver-of-appeal provision.” United States
v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Flores-Porras’s challenge to his
sentence is covered by the waiver. See Bond, 414 F.3d at 544. Because the
waiver provision applies, we dismiss the appeal. See United States
v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).
Finally, although not raised by either party, the written judgment
contains a clerical error. The district court orally pronounced a fine in the
amount of $1,000, but the written judgment indicates that the amount of the
fine is $2,000. ‘‘[W]hen there is a conflict between a written sentence and an
oral pronouncement, the oral pronouncement controls.’’ United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). In view of the foregoing, we
remand for the limited purpose of correcting the written judgment to reflect a
2
Case: 16-50508 Document: 00514363907 Page: 3 Date Filed: 02/27/2018
No. 16-50508
fine in the amount ordered orally by the district court. See United States
v. Pacheco-Alvarado, 782 F.3d 213, 223 (5th Cir. 2015).
APPEAL DISMISSED; REMANDED FOR CORRECTION OF
CLERICAL ERROR IN THE JUDGMENT.
3