United States v. Martinez-Rodriguez , 98 F. App'x 354 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 27, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50879
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO ADRIAN MARTINEZ-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-03-CR-70-1 WWJ
Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Hugo Adrian Martinez-Rodriguez (“Martinez”) appeals from his
thirty-seven month sentence for possession of more than 100
kilograms of marihuana with intent to distribute and aiding and
abetting in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18
U.S.C. § 2. Martinez’s sole contention on appeal is that the
*
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opinion should not be published and is not precedent except under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.
district court erred in denying his motion for a downward
departure.
This court reviews de novo whether a waiver of appeal bars an
appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir.
2002). As Martinez’s sentence did not exceed the statutory
maximum, and he is not arguing that the Government committed
prosecutorial misconduct or that he received ineffective assistance
of counsel, or that the Government in any way breached the plea
agreement, none of the exceptions to the waiver of appeal applies
in this case. Martinez, in his plea agreement, knowingly and
voluntarily waived his right to appeal his sentence and he does not
contend otherwise. See United States v. Portillo, 18 F.3d 290,
292-93 (5th Cir. 1994); see also United States v. Dees, 125 F.3d
261, 269 (5th Cir. 1997). Prior to sentencing the district court
accepted the guilty plea, made pursuant to the plea agreement, as
reflected in the magistrate judge’s report and recommendation which
the district court accepted. At the conclusion of sentencing the
government, as it agreed to in the plea agreement, moved to dismiss
the other count of the indictment, and the court granted the motion
and dismissed that count (a conspiracy count). As the plea and
plea agreement had already been accepted by the district court, the
court’s remarks at sentencing that the court rejected the part of
the plea agreement waiving the right of appeal and, after
sentencing the defendant, that it was rejecting the entire plea
2
agreement, all without any statement of reasons,1 did not affect
Martinez’s otherwise valid waiver. See McClure v. Ashcroft, 335
F.3d 404, 413 (5th Cir. 2003) (citing United States v. Ritsema, 89
F.3d 392, 398-99 (7th Cir. 1996)); United States v. Gonzalez, 259
F.3d 355, 358 (5th Cir. 2001); United States v. Melancon, 972 F.2d
566, 568 (5th Cir. 1992). The government argues that the plea
agreement’s waiver of appeal provision should be enforced by this
court. Martinez does not respond or address that matter at all.
Martinez’s waiver of appeal is enforceable and bars the present
appeal.
APPEAL DISMISSED.
1
The district court did state, without explanation, “this is
the kind of case where the Fifth Circuit needs to instruct the
courts of this circuit again.”
3