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United States v. Juan Henriquez-Martinez ( 2020 )


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  •      Case: 19-40567      Document: 00515437368         Page: 1    Date Filed: 06/02/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40567                             June 2, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN BAUTISTA HENRIQUEZ-MARTINEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CR-853-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Juan Bautista Henriquez-Martinez appeals his 33-month sentence for
illegal reentry. He argues that he should be resentenced under Kisor v. Wilkie,
    139 S. Ct. 2400 
    (2019), an administrative law decision that he contends
warrants less deference to the Sentencing Guidelines.                  The government
responds that Kisor does not change sentencing practices but that there are
two procedural roadblocks that prevent us from even reaching that question:
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40567    Document: 00515437368     Page: 2   Date Filed: 06/02/2020
No. 19-40567
Henriquez-Martinez waived his right to appeal the sentence and filed a late
notice of appeal.
Determining whether this appeal was timely is a bit complicated because
the district court extended the appeal deadline. See FED. R. APP. P. 4(b)(4). We
need not answer the question. Because the deadline for filing a notice of appeal
in a criminal case is not jurisdictional, we may pretermit the timeliness issue.
United States v. Martinez,
    496 F.3d 387
    , 389 (5th Cir. 2007)
Henriquez-Martinez’s appeal is nonetheless barred by the appeal waiver
in his plea agreement. He tries to get around the waiver by arguing that his
plea was not knowing and voluntary. Specifically, he contends he did not
understand that the government’s promise to recommend a certain downward
departure from his Guidelines score had exceptions even though the written
agreement listed those exceptions.      Because Henriquez-Martinez did not
challenge the adequacy of the plea colloquy before the district court, we review
for plain error. See United States v. Alvarado-Casas,
    715 F.3d 945
    , 953 (5th
Cir. 2013); United States v. Oliver,
    630 F.3d 397
    , 411-12 (5th Cir. 2011).
Henriquez-Martinez does not assert, much less show, that he would have
changed his plea if the district court had addressed separately and explicitly
the exceptions to the Government’s agreement to move for a downward
departure, which exceptions appeared in underlined language on the first and
second pages of the plea agreement. See United States v. Dominguez Benitez,
    542 U.S. 74
    , 83 (2004). The record is equally silent. Henriquez-Martinez
therefore fails to demonstrate plain error, see
    id., and his 
    appeal waiver bars
the instant appeal. See
    Alvarado-Casas, 715 F.3d at 955
    .
The appeal is DISMISSED.
2