IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN DELGADO NAVEJAR, JR.,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-90-CR-170-ALL
- - - - - - - - - -
September 14, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Benjamin Delgado Navejar, Jr., appeals his guilty-plea
convictions of distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (Count 1), and carrying a firearm during a drug-
trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count
2). The district court permitted this out-of-time appeal after
Navejar successfully argued in a 28 U.S.C. § 2255 collateral
proceeding that his appointed attorney had performed
ineffectively by failing to file an appeal on his behalf.
*
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that this opinion should not be published and is not precedent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.
No. 00-50016
-2-
Navejar contends that his guilty plea was entered
involuntarily because his plea agreement contained a paragraph
that amounted to an “illusory” promise that Count 3 of the
indictment would be dismissed. Count 3 charged Navejar with
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g), and with an accompanying Armed Career Criminal
Act (“ACCA”) sentencing enhancement under 18 U.S.C. § 924(e).
When a defendant is induced “by deception, an unfulfillable
promise, or misrepresentation to enter a plea of guilty,” the
plea “does not meet the standard for voluntariness articulated by
the Supreme Court,” and the plea is rendered involuntary. United
States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997).
Navejar does not suggest that the plea-agreement paragraph
contained false statements, that it misrepresented the facts of
the case or the law applicable to it, or that Count 3 was not in
fact dismissed. Instead, he appears to contend that the
paragraph was illusory because it promised a sentencing benefit
when the paragraph, even after being carried out, did not affect
his overall sentence. Navejar overlooks the fact that the
dismissal of an indictment count was itself a benefit to him,
even if it did not affect his overall sentence.
Moreover, Navejar has not convincingly supported his
conclusional assertion that this paragraph “induced” his decision
to plead guilty. That decision appears to have been induced
instead by the agreement between himself and the Government that
he would receive a total sentence of 270 months in prison and by
the Government’s indication that it would move for a FED. R. CRIM.
No. 00-50016
-3-
P. 35(b) downward departure if Navejar, in the Government’s
estimation, provided substantial assistance to the Government in
the investigation or prosecution of another person. Navejar’s
involuntary-guilty-plea claim is meritless.
AFFIRMED.