Case: 15-50213 Document: 00513329204 Page: 1 Date Filed: 01/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50213
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 5, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee,
v.
EDGAR ACOSTA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-1-1
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Edgar Acosta pleaded guilty pursuant to a plea agreement to conspiracy
to import marijuana. In the plea agreement, Acosta waived the right to appeal
his sentence on all grounds and retained the right to challenge his sentence
only to the extent that it resulted from a violation of his constitutional rights
based upon the ineffective assistance of counsel or prosecutorial misconduct of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50213 Document: 00513329204 Page: 2 Date Filed: 01/05/2016
No. 15-50213
a constitutional dimension. The district court varied downwardly from the
advisory guidelines range and sentenced Acosta to 24 months of imprisonment.
Acosta argues that the district court wrongly determined his base offense
level and, as a result, incorrectly calculated his advisory guidelines range. He
asserts that he was not responsible for the drugs attributed to him as relevant
conduct and that the district court violated the Sixth Amendment by assigning
to him drug amounts to which he did not admit and which a jury did not find
beyond a reasonable doubt. The Government contends that the appeal waiver
in the plea agreement bars Acosta’s claim. We review the validity of an appeal
waiver de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
The record establishes that Acosta knowingly and voluntarily waived his
right to appeal. Acosta knew that he had the right to appeal, indicated that he
reviewed and understood the waiver, and understood that he was waiving his
appellate rights under the terms of the waiver. See United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). The Government complied with the plea
agreement and intends to enforce the appeal waiver, which includes the claim
that Acosta seeks to assert. See United States v. Story, 439 F.3d 226, 231
(5th Cir. 2006); United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United
States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Thus, the appeal waiver
bars Acosta’s argument.
Acosta also argues that his trial counsel rendered ineffective assistance
by not challenging the reasonableness of the sentence. To the extent that this
argument falls within an exception to the waiver, the record is not sufficiently
developed to enable us to consider this claim fairly. Accordingly, we decline to
consider it on direct appeal without prejudice to any right Acosta has to raise
it on collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.),
cert. denied, 135 S. Ct. 123 (2014).
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Case: 15-50213 Document: 00513329204 Page: 3 Date Filed: 01/05/2016
No. 15-50213
Thus, Acosta has asserted claims that are barred by the appeal waiver
or not suitable for resolution on appeal. Accordingly, the appeal is dismissed.
See United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013).
APPEAL DISMISSED.
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