United States v. Pedro Rodriguez, III

Case: 15-40744 Document: 00513312220 Page: 1 Date Filed: 12/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40744
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 17, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
PEDRO RODRIGUEZ, III,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-937-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Pedro Rodriguez, III, 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).
Rodriguez has filed a response. We have reviewed counsel’s brief and the
relevant portions of the record reflected therein, as well as Rodriguez’s
response. Rodriguez contends that his guilty plea was induced by a false
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40744 Document: 00513312220 Page: 2 Date Filed: 12/17/2015
No. 15-40744
promise of no more than a 46-month sentence (which turned out to be the upper
end of his guidelines range); as a result of an upward variance, he received a
60-month sentence.
The record does not support Rodriguez’s claim that his guilty plea was
rendered involuntary by a promise of a certain sentence. In his written plea
agreement (which included an appeal waiver), Rodriguez stated that he
understood that (1) his sentence had yet to be determined, (2) that any
estimate of a possible range of punishment he may have received from counsel
or the Government was a mere prediction and not a promise, did not induce
his guilty plea, and was not binding on the court, and (3) the Government did
not make any promise or representation concerning a potential sentence.
At rearraignment, Rodriguez stated that he had reviewed the plea
agreement with counsel, signed it, and agreed to its terms. Rodriguez attested
that, aside from what was provided in his plea agreement, which contained no
stipulations as to any specific sentence, no one had made any promises to
induce his guilty plea and that his plea was voluntary. He also stated that he
understood that any prediction of a sentence by counsel was not binding on the
court and that he could not withdraw his guilty plea on that basis. In the
context of a guilty plea, a defendant’s “[s]olemn declarations in open court carry
a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Rodriguez’s current, unsubstantiated allegations as to a promise of a 46-month
sentence are insufficient to overcome the presumption of verity attached to his
statements made under oath at rearraignment. See id. Consequently, he has
not raised a nonfrivolous issue with regard to the validity of his guilty plea. To
the extent that Rodriguez seeks to raise a claim that counsel was ineffective
for misadvising him regarding his potential sentence, the record is
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No. 15-40744
insufficiently developed to consider such a claim at this time. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied, 135 S. Ct. 123 (2014).
Rodriguez also argues that his conviction is void because a Rule 11
colloquy may never be delegated to a non-Article III magistrate judge.
However, we have held that a magistrate judge has the statutory authority
under § 636(b)(3) to take a Rule 11 guilty plea and that the delegation of the
plea colloquy to such a judge does not violate the Constitution. See United
States v. Dees, 125 F.3d 261, 266 (5th Cir. 1997).
We concur with counsel’s assessment that the appeal presents no
nonfrivolous issue for appellate review. Accordingly, counsel’s 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. Rodriguez’s
motion for appointment of counsel or, in the alternative, to proceed pro se is
DENIED.
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