United States v. Vela

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-41530 F I L E D
Summary Calendar September 27, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
ARACELY VELA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-169-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Aracely Vela appeals her 120-month sentence following her guilty plea
conviction of conspiracy to possess with intent to distribute more than five
kilograms of cocaine. The Government seeks enforcement of the sentence-appeal
waiver in the plea agreement.
Vela argues that the sentence-appeal waiver should not be enforced
because her conviction should be reversed, her guilty plea was not knowing and
voluntary, the Government breached the agreement, she was denied effective
*
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should not be published and is not precedent except under the limited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. 06-41530
assistance of counsel, and an exception to the waiver applies. United States v.
Gonzalez-Lopez, 126 S. Ct. 2557, 2565 (2006), is inapplicable to Vela who was
represented in the district court by court-appointed counsel. Moreover, the
record shows that Vela was not denied her choice of counsel and was not coerced
into pleading guilty.
Vela contends that her guilty plea was not knowing and voluntary due to
prosecutorial bad faith or misconduct. Her assertions are not supported by the
record. She has not briefed her argument adequately and has not shown that
the district court’s actions affected the validity of her guilty plea. United States
v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991).
Vela also argues that she did not have sufficient notice at rearraignment
that she faced an adjustment for use of a juvenile. This assertion is belied by the
record. Whether Vela “resisted admitting” and whether the facts at
rearraignment supported the U.S.S.G. § 3B1.4 increase are irrelevant to the
validity of her guilty plea. The § 3B1.4 increase was a sentencing issue. Even
post-Booker1 the sentencing judge may continue to find by a preponderance of
the evidence all facts relevant to sentencing, even if those facts increase the
guideline sentencing range. United States v. Johnson, 445 F.3d 793, 798 (5th
Cir.), cert. denied, 126 S. Ct. 2884 (2006).
Vela has not carried her burden of establishing by a preponderance of the
evidence that the Government breached the plea agreement. United States v.
Laday, 56 F.3d 24, 26 (5th Cir. 1995). The record is insufficiently developed for
us to consider Vela’s ineffective-assistance claims at this time. Accordingly, we
decline to consider them. See United States v. Lampazianie, 251 F.3d 519, 523
(5th Cir. 2001).
Our review of the record shows that Vela’s sentence-appeal waiver was
knowing and voluntary and that, under the plain language of the plea
1
United States v. Booker, 543 U.S. 220 (2005).
2
No. 06-41530
agreement, the waiver applies to the circumstances at hand. See United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Accordingly, Vela’s appeal waiver
bars review of her sentencing issues raised on appeal.
AFFIRMED.
3