Case: 13-50200 Document: 00512471556 Page: 1 Date Filed: 12/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50200 December 16, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL ANGELO ARELLANO, also known as Rene Sanchez, also known
as Gilbert Sanchez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2986-1
Before KING, DAVIS, and SMITH, Circuit Judges.
PER CURIAM: *
Michael Angelo Arellano appeals the 180-month sentence imposed
following his guilty plea conviction of conspiracy to possess with intent to
distribute more than 100 kilograms of cocaine. Arellano contends (1) that the
district court erred by departing upward from the guidelines range of 120 to
125 months based on his criminal history, and (2) that his counsel rendered
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50200 Document: 00512471556 Page: 2 Date Filed: 12/16/2013
No. 13-50200
ineffective assistance by failing to file written arguments against the departure
and failing to advise him of the mandatory minimum sentence he faced by
pleading guilty.
As the Government contends, Arellano’s plea agreement contains a
waiver of Arellano’s right to appeal his sentence on any grounds, with an
exception for sentencing claims based on ineffective assistance of counsel or
prosecutorial misconduct. His appeal of the upward departure falls squarely
within the unambiguous terms of the waiver. However, Arellano does not
address the waiver in his brief, nor did he file a reply brief to answer the
Government’s waiver arguments. He makes conclusory assertions that his
plea was invalid, but he offers no citation to the record and no meaningful
analysis. Thus, Arellano effectively has abandoned any challenge to the
waiver’s validity. See United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992).
The record is not sufficiently developed to consider Arellano’s ineffective
assistance of counsel claim, and Arellano offers no argument to the contrary.
Thus, we decline to address it, without prejudice to his ability to raise it in a
postconviction proceeding. See United States v. Cantwell, 470 F.3d 1087, 1091
(5th Cir. 2006).
For the foregoing reasons, the appeal is dismissed. Further, we caution
counsel that pursuing an appeal contrary to a valid waiver and failing to
address the waiver in a reply brief after it was raised in the Government’s brief
constitute a needless waste of judicial resources and will invite sanctions. See
United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999). Similarly, the
failure to provide citations to the record and to offer legal analysis beyond
conclusory arguments also constitutes grounds for sanctions. See Coghlan v.
Starkey, 852 F.2d 806, 809-18 (5th Cir. 1988) (per curiam).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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