United States v. Neil Rene

Case: 13-10658 Document: 00512728060 Page: 1 Date Filed: 08/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10658
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 8, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
NEIL NICK RENE,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-95-3
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Neil Nick Rene pleaded guilty, pursuant to a written plea agreement, to
conspiracy to possess with intent to distribute 50 kilograms or more of
marijuana and conspiracy to launder monetary instruments, and he was
sentenced to 151 months of imprisonment on each count, to run concurrently.
As part of the agreement, Rene broadly waived his right to appeal his
conviction and sentence, reserving only the rights to appeal any punishment
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-10658
imposed in excess of the statutory maximum, to challenge the voluntariness of
his guilty plea or appeal waiver, and to bring a claim of ineffective assistance
of counsel that influenced the voluntariness of the plea or waiver.
On appeal, Rene contends that the district court erred in applying the
importation enhancement under U.S.S.G. § 2D1.1(b)(14)(C) and in
determining the drug quantities used to calculate his base offense level and
further that the district court failed to properly consider and weigh relevant
mitigating factors under 18 U.S.C. § 3553(a). The Government argues that the
appeal is barred by the appeal waiver provision of the plea agreement. Rene
acknowledges the waiver but contends it is invalid.
As an initial matter, Rene’s contention that his guilty plea violates due
process because he was not aware of the actual sentence he faced or that he
would be held accountable for “factually unsupported” drug amounts is refuted
by the record. In writing and during his rearraignment, Rene verified that he
understood that he faced a maximum possible penalty of 20 years in prison on
each count. He therefore was fully aware of the consequences of his guilty plea.
See United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996).
Further, the record of Rene’s rearraignment shows that the waiver was
knowing and voluntary, as Rene knew he had the right to appeal and that he
was giving up that right as set forth in the plea agreement. See United States
v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v. Portillo, 18
F.3d 290, 292-93 (5th Cir. 1994). Rene’s argument that he was unaware he
would be without recourse to correct an “improper” or “unjust” sentence
resulting from an unforeseen offense level does not alter this conclusion. See
United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992). Similarly,
Rene’s challenge to the group guilty-plea procedure fails, as the record reflects
that the magistrate judge addressed the defendants individually and was
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No. 13-10658
careful to obtain individual answers from each defendant, including Rene, and
Rene did not object to the procedure. See United States v. Salazar-Olivares,
179 F.3d 228, 229-30 (5th Cir. 1999). Further, the waiver was not rendered
invalid by the district court’s mistaken assertion at sentencing regarding
Rene’s appellate rights and the Government’s failure to correct the mistake.
See Melancon, 972 F.2d at 568.
Because the plain language of the appeal waiver provision applies to
Rene’s challenges to his sentence, we will enforce the waiver and DISMISS the
appeal. See United States v. Bond, 414 F.3d 542, 545-46 (5th Cir. 2005).
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