United States v. Juan Lomas-Rodriguez ( 2014 )

Case: 13-50954 Document: 00512829170 Page: 1 Date Filed: 11/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-50954
Fifth Circuit
FILED
Summary Calendar November 6, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JUAN ALEJANDRO LOMAS-RODRIGUEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1888-2
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Juan Alejandro Lomas-Rodriguez pleaded guilty pursuant to a plea
agreement to a single count of conspiracy to possess with intent to distribute
500 grams or more of a mixture or substance containing methamphetamine.
As part of his plea agreement, he agreed to waive his right to appeal, except
for claims of prosecutorial misconduct or ineffective assistance of counsel. The
Government agreed, in relevant part, to “make known to the sentencing court
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50954 Document: 00512829170 Page: 2 Date Filed: 11/06/2014
No. 13-50954
the extent of Defendant’s truthful and substantial cooperation with the
Government, if Defendant should choose to cooperate.”
On appeal, Lomas-Rodriguez argues that the Government breached the
plea agreement and committed prosecutorial misconduct by failing to inform
the district court at sentencing of the extent of his cooperation. If the
Government breaches a plea agreement, a waiver of appeal provision is void
and not enforceable. See United States v. Keresztury, 293 F.3d 750, 755-57 (5th
Cir. 2002). Lomas-Rodriguez concedes that, because he did not raise this issue
below, review is for plain error. See United States v. Reeves, 255 F.3d 208, 210
(5th Cir. 2001).
We find that no breach of the plea agreement, or prosecutorial
misconduct, occurred. Although the Government made no explicit statement
regarding cooperation at sentencing, the record shows that the district court
was aware of the results of Lomas-Rodriguez’s debriefings through the Pre-
Sentence Report (PSR) and other documents. Cf. Reeves, 255 F.3d at 210
(finding no breach of plea agreement because Government’s agreement to
recommend a particular sentence was satisfied by the inclusion of the plea
agreement in the PSR). The district court specifically referenced Lomas-
Rodriguez’s debriefings during sentencing, stated it believed his version of
events, and noted that he had satisfied the requirements to obtain the benefit
of the “safety valve” sentencing provisions found in U.S.S.G. § 5C1.2 and 18
U.S.C. § 3553(f). Because the Government did not breach its obligation to
“make known” to the district court the results of these debriefings, the waiver
of appeal provision is valid and enforceable.
APPEAL DISMISSED.
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