United States v. Nicholas Flores , 638 F. App'x 425 ( 2016 )


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  •      Case: 15-50149       Document: 00513427419         Page: 1     Date Filed: 03/17/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 15-50149                          United States Court of Appeals
    Summary Calendar
    Fifth Circuit
    FILED
    March 17, 2016
    UNITED STATES OF AMERICA,                                                    Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    NICHOLAS JOSE FLORES, also known as Nicky, also known as Nicholas J.
    Flores,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:13-CR-177-3
    Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
    PER CURIAM: *
    Pursuant to a written plea agreement, Nicholas Jose Flores pleaded
    guilty to: conspiracy to interfere with commerce by threats or violence, in
    violation of 18 U.S.C. § 1951; and conspiracy to distribute methamphetamine,
    in violation of 21 U.S.C. §§ 841 and 846. In that agreement, Flores waived 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    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 15-50149         Document: 00513427419   Page: 2   Date Filed: 03/17/2016
    No. 15-50149
    “right to appeal his sentence on any ground”, unless his constitutional rights
    were violated by ineffective assistance of counsel or prosecutorial misconduct.
    Flores was sentenced to a within-advisory-Guidelines term of 235
    months’ imprisonment.          In challenging that sentence, Flores asserts the
    district court erred by: not grouping the counts of conviction; imposing a
    significantly harsher sentence than that given to a similarly-situated co-
    defendant; and not properly considering his background when weighing the 18
    U.S.C. § 3553 sentencing factors.        Flores, however, does not address his
    appellate waiver, which the Government asserts precludes his claims. He has
    not filed a reply brief.
    In determining whether an appeal of a sentence is barred by a plea-
    agreement waiver provision, we must analyze “whether the waiver[:] was
    knowing and voluntary[;] and . . . applies to the circumstances at hand, based
    on the plain language of the agreement”. United States v. Bond, 
    414 F.3d 542
    ,
    544 (5th Cir. 2005). The waiver is both knowing and voluntary if Flores
    “indicated that he had read and understood the plea agreement, which includes
    an explicit, unambiguous waiver of appeal”. United States v. McKinney, 
    406 F.3d 744
    , 746 (5th Cir. 2005).
    Again, Flores fails to even mention the waiver in his brief; therefore, any
    challenges to its validity are abandoned. E.g., Yohey v. Collins, 
    985 F.2d 222
    ,
    224–25 (5th Cir. 1993). Nonetheless, the record does not support a finding that
    the waiver was unknowing and involuntary. Therefore, Flores’ claims about
    his sentence are barred because they do not fall into any of the waiver’s
    exceptions.
    Flores also contends the court abused its discretion by denying his
    motion to continue sentencing, in order to challenge a state-court sentence on
    post-conviction review. As this challenge arguably falls outside the scope of
    2
    Case: 15-50149    Document: 00513427419    Page: 3   Date Filed: 03/17/2016
    No. 15-50149
    the appellate waiver, it will be considered. See 
    Bond, 414 F.3d at 544
    . In any
    event, courts “have broad discretion in deciding requests for continuances, and
    we review only for an abuse of that discretion resulting in serious prejudice”.
    United States v. German, 
    486 F.3d 849
    , 854 (5th Cir. 2007). Flores cannot show
    serious prejudice because the state-court relief he sought would not have
    affected his Guidelines sentencing range, and therefore would not have
    changed the outcome of his sentence. See United States v. Bishop, 111 F. App’x
    343, 344 (5th Cir. 2004).
    AFFIRMED.
    3
    

Document Info

Docket Number: 15-50149

Citation Numbers: 638 F. App'x 425

Filed Date: 3/17/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023