United States v. Juan Segura-Lopez , 358 F. App'x 557 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2009
No. 09-50229
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN DAVID SEGURA-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:08-CR-496-4
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Juan David Segura-Lopez appeals the sixty-month sentence he received
after pleading guilty to conspiracy to possess with the intent to distribute more
than 100 kilograms of marijuana, in violation of 21 U.S.C. § 846. For the first
time on appeal, he contends that the district court plainly erred in not awarding
him a U.S.S.G. § 5C1.2 safety-valve reduction and in failing to impose a sentence
below the statutory minimum. As the Government contends, the instant appeal
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-50229
is barred by the waiver-of-appeal provision in Segura-Lopez’s plea agreement,
which was knowing, voluntary, and enforceable. See United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo, 18 F.3d 290, 292-93
(5th Cir. 1994); Fed. R. Crim. P. 11(b)(1)(N).
Segura-Lopez’s argument that the Government breached the plea
agreement by failing to request a safety valve reduction fails because the
Government was under no affirmative obligation to request such a reduction.
In addition, he had two criminal history points. Thus he was statutorily
ineligible to receive the safety valve reduction. U.S.S.G. § 5C1.2(a)(1). Segura-
Lopez’s claim that the Government engaged in prosecutorial misconduct by
withholding unspecified information regarding his eligibility for safety valve
consideration is wholly conclusional and is not cognizable. See Nichols v. Scott,
69 F.3d 1255, 1286 (5th Cir. 1995) (28 U.S.C. § 2254 case).
AFFIRMED.
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