United States v. Pedro Ibarra-Loera

Case: 12-41318 Document: 00512489640 Page: 1 Date Filed: 01/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-41318 January 6, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PEDRO IBARRA-LOERA,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-49-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Pedro Ibarra-Loera appeals his guilty-plea conviction and sentence for
possession with intent to distribute methamphetamine. He argues that an
appeal-waiver provision contained in his plea agreement is unenforceable
because the district court informed him that he could appeal an illegal sentence
and that his plea bargain was illusory because he did not benefit from the
agreement as he expected. He asserts that his plea was uninformed because
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41318 Document: 00512489640 Page: 2 Date Filed: 01/06/2014
No. 12-41318
the magistrate judge who accepted the plea did not inform him of the full
immigration consequences of pleading guilty, including the fact that he would
not be eligible for naturalization. He argues for the adoption of pattern
instructions concerning appeal waivers, and he urges that we revisit our
decision in United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992),
with respect to the types of errors that can be waived. He argues that his
sentence was unreasonable in light of the sentence contemplated by the plea
agreement and that it was imposed as a result of the district court’s bias
against noncitizens.
The Government has moved for summary dismissal based on the appeal
waiver in the plea agreement. In the alternative, the Government requests an
extension of time to file its appellate brief. Ibarra-Loera has moved for leave
to file an out of time response to the motion to dismiss.
The record shows that Ibarra-Loera knowingly and voluntarily agreed to
the appeal waiver and that he understood that the sentencing stipulations in
the plea agreement were not binding on the district court. His contentions
concerning the appeal waiver are frivolous. See United States v. Bond, 414
F.3d 542, 544 & n.4 (5th Cir. 2005). His assertion that the magistrate judge’s
advice concerning the immigration consequences of his plea was inadequate in
light of Padilla v. Kentucky, 559 U.S. 356, 365-67 (2010), fails to show
reversible plain error. See United States v. De La Cruz-Trejo, 518 F. App’x 286,
286 (5th Cir. 2013). Ibarra-Loera’s other arguments, which concern his
sentencing, are barred by the appeal waiver. See Bond, 414 F.3d at 544.
Consequently, the Government’s motion for summary dismissal and
Ibarra-Loera’s motion to file a response out of time are GRANTED; the
Government’s alternative motion for an extension of time is DENIED; and the
appeal is DISMISSED AS FRIVOLOUS.
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