United States v. Herrera

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2003
Charles R. Fulbruge III
Clerk
No. 02-11326
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL HERRERA,
Defendant-Appellant.
No. 02-11327
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO HERRERA, JR.,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-352-2-D
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
No. 02-11326 c/w
No. 02-11327
-2-
Raul Herrera and Lazaro Herrera, Jr., pleaded guilty to one
count of conspiracy to possess 500 grams of methamphetamine. The
Herreras argue that the district court abused its discretion when
it denied their motions to withdraw their guilty pleas, that
their guilty pleas were based upon an oral promise that the
Government would recommend a two-offense-level downward departure
if all the defendants charged in the indictment pleaded guilty,
and that the Government breached its oral promise.
The oral promise was not discussed at the plea hearing. See
FED. R. CRIM. P. 11(e)(2) (2002); Santobello v. New York, 404 U.S.
257, 261-62 (1971); United States v. Coscarelli, 149 F.3d 342,
345 (5th Cir. 1998) (en banc). The record supports the district
court’s finding that, even if the Government had made the oral
promise, that promise was not part of the plea bargain discussed
and accepted by the parties and the court at the plea hearing and
that the Herreras’ pleas were not involuntary based upon an
unkept promise. The district court’s determination that, in
light of the totality of the circumstances, the Herreras were not
entitled to withdraw their pleas was not an abuse of discretion.
See United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997);
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). Nor
have the Herreras established a breach of their plea agreements.
See United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000).
No. 02-11326 c/w
No. 02-11327
-3-
The district court’s denial of the Herreras’ motions to
withdraw their guilty pleas and their guilty-plea convictions are
AFFIRMED.