United States v. Ernesto Nerio-Castro , 535 F. App'x 355 ( 2013 )

Case: 12-41393 Document: 00512301036 Page: 1 Date Filed: 07/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2013
No. 12-41393
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
ERNESTO NERIO-CASTRO, also known as Jose Zamarrippa-Perez, also known
as Jose Zamaripa-Perez, also known as Ernesto Nereo-Hernandez, also known
as Chino, also known as Ernesto Neri-Castro, also known as Ernesto Hernandez,
also known as Ernestro Castro,
Defendant – Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-68-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ernesto Nerio-Castro appeals the sentence imposed following his guilty
plea conviction for being found in the United States illegally after removal.
Nerio-Castro was sentenced to 71 months in prison and three years of supervised
release. He contends that his sentence is procedurally and substantively
unreasonable because it includes a term of supervised release notwithstanding
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41393 Document: 00512301036 Page: 2 Date Filed: 07/09/2013
No. 12-41393
the language of U.S.S.G. § 5D1.1(c) (“The court ordinarily should not impose a
term of supervised release in a case in which supervised release is not required
by statute and the defendant is a deportable alien who likely will be deported
after imprisonment.”).
The Government moves for dismissal because Nerio-Castro’s appeal is
barred by the waiver of appeal in the plea agreement. The waiver provides that
“the defendant expressly waives the right to appeal the conviction[ and] sentence
. . . on all grounds” except (1) “any punishment imposed in excess of the statutory
maximum,” and (2) a claim of ineffective assistance of counsel that affects the
validity of the waiver or the plea itself.”
While he recognizes the existence of the appeal waiver and certifies that
the Government intends to enforce it, see United States v. Acquaye, 452 F.3d 380,
382 (5th Cir. 2006), Nerio-Castro has not challenged the validity of the waiver
nor asserted that either of its exceptions apply. Accordingly, he has abandoned
any argument that the waiver is invalid or inapplicable. See United States v.
Green, 964 F.2d 365, 371 (5th Cir. 1992). Moreover, a review of the record
indicates that Nerio-Castro knowingly and voluntarily waived his right to appeal
his sentence, see United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994), and
that his challenge does not fall within the exceptions to the waiver.
Although a valid appeal waiver does not implicate our jurisdiction, see
United States v. Story, 439 F.3d 226, 230 (5th Cir. 2006), Nerio-Castro’s appeal
of his sentence is clearly barred by the waiver, and the appeal is DISMISSED AS
FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983); 5TH
CIR. R. 42.2. The Government’s motion to dismiss is GRANTED, and its
alternative motion for an extension of time to file a brief is DENIED as
unnecessary.
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