United States v. Pedro Lopez-Castillo

Case: 09-50456 Document: 00511133736 Page: 1 Date Filed: 06/07/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 7, 2010 No. 09-50456 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO LOPEZ-CASTILLO, Also Known as Pedro Castillo Lopez, Also Known as Pedro Castillo-Lopez, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 2:08-CR-270-1 Before DAVIS, SMITH, and DENNIS, Circuit Judges. PER CURIAM:* Pedro Lopez-Castillo appeals the sentence imposed following his guilty- * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50456 Document: 00511133736 Page: 2 Date Filed: 06/07/2010 No. 09-50456 plea conviction. For the first time on appeal, he contends that the district court erred in not awarding him a U.S.S.G. § 5C1.2 safety-valve reduction and in fail- ing to impose a sentence below the statutory minimum. As the government contends, however, the appeal is barred by the waiver-of-appeal provision in the 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); F ED. R. C RIM. P. 11(b)(1)(N). Lopez-Castillo nonetheless argues that the appellate-waiver provision is unenforceable, because the government breached the plea agreement by not re- questing a safety-valve reduction. That argument fails, because the government was under no obligation to request such reduction and because Lopez-Castillo did not qualify for it. Likewise, his assertion that the government breached the terms of the agreement by not filing a motion for reduction of sentence under Federal Rule of Criminal Procedure 35 is unavailing, because the government did not bargain away its discretion to file for a sentencing reduction, and the agreement did not otherwise obligate the government to file such a motion. See Wade v. United States, 504 U.S. 181, 185 (1992); United States v. Sneed, 63 F.3d 381, 388 n.6 (5th Cir. 1995). Finally, Lopez-Castillo’s alternative argumentSS that the waiver, even if enforceable, does not apply, because his claim involves an allegation of prosecutorial misconduct that is excluded under the waiverSSis without merit. AFFIRMED. 2