Case: 13-51190 Document: 00512830507 Page: 1 Date Filed: 11/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51190
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 3, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ROGELIO MACEDO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CR-164-5
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Rogelio Macedo 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).
Macedo has filed a response. We have reviewed counsel’s brief and the relevant
portions of the record reflected therein, as well as Macedo’s response.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-51190
The thrust of Macedo’s response is that the Government breached the
plea agreement by “support[ing] information inconsistent with the plea
agreement.” According to Macedo, he
entered into an agreement which stipulated to a particular set of
facts that stated that Macedo was engaged in a conspiracy. And
that [he] was involved in a large methamphetamine organization.
Although there is mention of large quantities of
methamphetamines the factual basis only reveals that two people
drove cars containing five kilograms of methamphetamines.
Specifically, Macedo avers that the Government breached the terms of the
agreement “when it introduced evidence through the presentence report that
attributed a larger amount of methamphetamine contrary to that stipulated in
the plea agreement.” In this regard, he contends that the plea agreement only
stipulated to 10 kilograms of methamphetamine, whereas the PSR
recommended that 11,670.82 grams of methamphetamine mixture could be
attributed to him, in addition to 3,661.05 grams of methamphetamine actual.
Macdeo’s breach argument lacks merit. As an initial matter, there is no
provision in the plea agreement stipulating that Macedo will be sentenced
based on a specified quantity of drugs. Indeed, under the agreement, the
Government explicitly reserved the right to “inform the U.S. Probation Office
and the Court of all information relevant to determining sentence.” Moreover,
there is no indication in the record that the Government actually informed the
court of additional drug quantities. Finally, contrary to Macedo’s contentions,
the factual stipulation in the plea agreement nowhere indicates that only 10
kilograms could be attributed to Macedo. Rather, the plea agreement notes
that Macedo was engaged in a conspiracy, in which he received and distributed
“large quantities of methamphetamines.” While the agreement does contain a
factual stipulation that Macedo was present at a scene “where cars containing
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Case: 13-51190 Document: 00512830507 Page: 3 Date Filed: 11/07/2014
No. 13-51190
5 kilograms of methamphetamine” were being delivered, the agreement
nowhere indicates that this was the exclusive episode involving Macedo.
Following our review of counsel’s brief, Macedo’s response, and the
record, 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, and counsel is excused from further responsibilities
herein. Macedo’s motion for the appointment of new counsel is DENIED. See
United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). The APPEAL
IS DISMISSED. See 5TH CIR. R. 42.2.
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