United States v. Avila ( 2023 )

Case: 22-50665 Document: 00516697299 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50665
Summary Calendar FILED
____________ March 31, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Agapito Avila,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CR-332-1
______________________________
Before Jolly, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Agapito Avila pleaded guilty, pursuant to a written agreement that
included an appeal waiver, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court
sentenced Avila to 120 months of imprisonment. Avila challenges his
sentence, arguing that the Government breached the plea agreement when it
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50665 Document: 00516697299 Page: 2 Date Filed: 03/31/2023
No. 22-50665
failed to move for the third-level reduction for acceptance of responsibility
under U.S.S.G. § 3El.l(b) and that the district court erred when it denied him
the third level and also when it enhanced his sentence because Avila used or
possessed a firearm or ammunition in connection with another felony
offense.
Despite Avila’s appeal waiver, we may reach whether the
Government breached the plea agreement. See United States v. Purser, 747
F.3d 284, 289 & n.11 (5th Cir. 2014). We need not, however, decide whether
Avila preserved this error because his challenge fails even under a de novo
standard. See United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010).
Based on the record as a whole, the district court did not clearly err
when it found that Avila continued to participate in criminal activity after he
entered his guilty plea because he violated prison rules to brew alcohol at the
facility where he was detained. See United States v. Lord, 915 F.3d 1009, 1017
(5th Cir. 2019). Because Avila did not qualify for a reduction for acceptance
of responsibility, the conditions requiring that the Government move for the
third-level reduction were not satisfied, and the Government did not breach
the plea agreement when it did not make such a motion. See United States v.
Cluff, 857 F.3d 292, 298-300 (5th Cir. 2017). Avila’s appeal of his sentence
is barred by his appeal waiver. See Purser, 747 F.3d at 294-95.
DISMISSED.
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