United States v. Garcia ( 2023 )

Case: 23-60290 Document: 00516932282 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 16, 2023
No. 23-60290 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Henry Herrera Garcia,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:22-CR-91-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Henry Herrera Garcia pleaded guilty, pursuant to a written plea
agreement, to possession of 15 or more counterfeited and unauthorized
access devices with intent to defraud, in violation of 18 U.S.C. § 1029(a)(3).
He was sentenced to 41 months of imprisonment, followed by a three-year
term of supervised release. On appeal, Garcia challenges his sentence as
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60290
substantively unreasonable, urging that it is greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a) under the totality of the
circumstances, including his role in the offense, his lack of criminal history,
and his personal history and characteristics.
Invoking the waiver of appeal provision in Garcia’s plea agreement,
the Government moves to dismiss the appeal or, alternatively, for summary
affirmance, asserting that the waiver is valid and enforceable and precludes
Garcia’s sentencing challenge. The motion for summary affirmance is
DENIED because the summary affirmance procedure is generally reserved
for cases in which the parties concede that the issues are foreclosed by circuit
precedent. Cf. United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010)
(noting the denial of summary affirmance where an issue was not foreclosed).
Garcia argues that his appeal waiver is not enforceable because it is
unconstitutional, basing his argument on a concurring opinion in United
States v. Melancon, 972 F.2d 566, 570-80 (5th Cir. 1992) (Parker, J.,
concurring). However, as he apparently concedes, this court has held that
appellate rights are “statutory, not constitutional” and that even
constitutional rights can generally “be waived as part of a [valid] plea
agreement.” United States v. Keele, 755 F.3d 752, 756 (5th Cir. 2014); see also
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); Melancon, 972 F.2d
at 567.
The validity of an appeal waiver is a question of law that we review de
novo. Keele, 755 F.3d at 754. The record confirms that Garcia read and
understood the plea agreement, which contained an “explicit, unambiguous
waiver of appeal.” United States v. McKinney, 406 F.3d 744, 746 (5th Cir.
2005). Thus, his appeal waiver was knowing and voluntary. See United States
v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014); Fed. R. Crim. P. 11(b)(1)(N).
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No. 23-60290
Accordingly, he is bound by it unless the Government breached the plea
agreement. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).
Garcia does not argue that the Government breached the plea
agreement, and the record demonstrates that, to the contrary, the
Government complied with each of its promises in the plea agreement.
Consequently, the waiver is valid and enforceable, see Gonzalez, 309 F.3d at
886, and bars Garcia’s challenge to his sentence. See Higgins, 739 F.3d at 736-
37; United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013).
Accordingly, IT IS ORDERED that the Government’s motion for
dismissal is GRANTED, and the appeal is DISMISSED.
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