United States v. Pedro Rodriguez, III , 624 F. App'x 316 ( 2015 )


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  •      Case: 15-40744      Document: 00513312220         Page: 1    Date Filed: 12/17/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 15-40744
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    December 17, 2015
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    PEDRO RODRIGUEZ, III,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. 5:14-CR-937-1
    Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
    PER CURIAM: *
    The attorney appointed to represent Pedro Rodriguez, III, has moved for
    leave to withdraw and has filed a brief in accordance with Anders v. California,
    
    386 U.S. 738
    (1967), and United States v. Flores, 
    632 F.3d 229
    (5th Cir. 2011).
    Rodriguez has filed a response. We have reviewed counsel’s brief and the
    relevant portions of the record reflected therein, as well as Rodriguez’s
    response. Rodriguez contends that his guilty plea was induced by a false
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40744     Document: 00513312220     Page: 2   Date Filed: 12/17/2015
    No. 15-40744
    promise of no more than a 46-month sentence (which turned out to be the upper
    end of his guidelines range); as a result of an upward variance, he received a
    60-month sentence.
    The record does not support Rodriguez’s claim that his guilty plea was
    rendered involuntary by a promise of a certain sentence. In his written plea
    agreement (which included an appeal waiver), Rodriguez stated that he
    understood that (1) his sentence had yet to be determined, (2) that any
    estimate of a possible range of punishment he may have received from counsel
    or the Government was a mere prediction and not a promise, did not induce
    his guilty plea, and was not binding on the court, and (3) the Government did
    not make any promise or representation concerning a potential sentence.
    At rearraignment, Rodriguez stated that he had reviewed the plea
    agreement with counsel, signed it, and agreed to its terms. Rodriguez attested
    that, aside from what was provided in his plea agreement, which contained no
    stipulations as to any specific sentence, no one had made any promises to
    induce his guilty plea and that his plea was voluntary. He also stated that he
    understood that any prediction of a sentence by counsel was not binding on the
    court and that he could not withdraw his guilty plea on that basis. In the
    context of a guilty plea, a defendant’s “[s]olemn declarations in open court carry
    a strong presumption of verity.” Blackledge v. Allison, 
    431 U.S. 63
    , 74 (1977).
    Rodriguez’s current, unsubstantiated allegations as to a promise of a 46-month
    sentence are insufficient to overcome the presumption of verity attached to his
    statements made under oath at rearraignment. See 
    id. Consequently, he
    has
    not raised a nonfrivolous issue with regard to the validity of his guilty plea. To
    the extent that Rodriguez seeks to raise a claim that counsel was ineffective
    for misadvising him regarding his potential sentence, the record is
    2
    Case: 15-40744     Document: 00513312220     Page: 3    Date Filed: 12/17/2015
    No. 15-40744
    insufficiently developed to consider such a claim at this time. See United States
    v. Isgar, 
    739 F.3d 829
    , 841 (5th Cir.), cert. denied, 
    135 S. Ct. 123
    (2014).
    Rodriguez also argues that his conviction is void because a Rule 11
    colloquy may never be delegated to a non-Article III magistrate judge.
    However, we have held that a magistrate judge has the statutory authority
    under § 636(b)(3) to take a Rule 11 guilty plea and that the delegation of the
    plea colloquy to such a judge does not violate the Constitution. See United
    States v. Dees, 
    125 F.3d 261
    , 266 (5th Cir. 1997).
    We concur with counsel’s assessment that the appeal presents no
    nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave
    to withdraw is GRANTED, counsel is excused from further responsibilities
    herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Rodriguez’s
    motion for appointment of counsel or, in the alternative, to proceed pro se is
    DENIED.
    3
    

Document Info

Docket Number: 15-40744

Citation Numbers: 624 F. App'x 316

Filed Date: 12/17/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023