United States v. Agustin Aguilar-Torres

Case: 15-50044 Document: 00513284261 Page: 1 Date Filed: 11/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50044 FILED
Summary Calendar November 24, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AGUSTIN AGUILAR-TORRES, also known as Agustin Torres, also known as
Augustine Aguilar, also known as Agustine Torres Aguilar, also known as
“Wacko,” also known as Agustin Torres-Aguilar, also known as Agustin Tino
Aguilar, also known as Agustin Aguilar,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-478-5
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Agustin Aguilar-Torres has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Aguilar-Torres has filed a response. The record is not sufficiently
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50044 Document: 00513284261 Page: 2 Date Filed: 11/24/2015
No. 15-50044
developed to allow us to make a fair evaluation of Aguilar-Torres’s claim of
ineffective assistance of counsel; we therefore decline to consider the claim
without prejudice to collateral review. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir.), cert. denied, 135 S. Ct. 123 (2014). Aguilar-Torres’s appellate
waiver is enforceable because it was knowingly and voluntarily made. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Aguilar-Torres’s claim about the sufficiency of the factual basis of his
plea survives the appellate waiver. See United States v. Hildenbrand, 527 F.3d
466, 474 (5th Cir. 2008). Nonetheless, because he signed the plea agreement,
which contained the factual basis, and stated at rearraignment that he had no
objection to it, he cannot present a nonfrivolous appellate claim. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open
court carry a strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary
dismissal, as are contentions that in the face of the record are wholly
incredible.”); United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (noting that
executed, unambiguous plea agreements are afforded substantial evidentiary
weight). To the extent Aguilar-Torres asks to appeal pro se, his request is
DENIED as untimely because it was lodged after the Anders brief was filed.
See United States v. Wagner, 158 F.3d 901, 902–03 (5th Cir. 1998).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Aguilar-Torres’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. Accordingly, the motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.
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