United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
03-50602
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO RODRIGUEZ, also known as Joseph Armando Ramirez,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(MO-02-CR-105-ALL)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Mario Rodriguez appeals his guilty-plea conviction and
sentence (including an upward departure) for possession of a
firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). Court-appointed counsel filed
a motion to withdraw, pursuant to Anders v. California, 386 U.S.
738 (1967); but a member of this court found a potentially
nonfrivolous appellate issue: whether Rodriguez’s plea was
rendered involuntary by the magistrate judge’s failure to advise
*
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this opinion should not be published and is not precedent except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.
him during rearraignment, pursuant to FED. R. CRIM. P. 11(b)(1)(M),
that the court could depart upward from the applicable Sentencing
Guidelines range. The order denying leave to withdraw also stated
that counsel “should ... include an explanation of the effects of
the waiver-of-appeal provision”. In response, however, counsel
filed a merits brief that neither addresses the voluntariness of
Rodriguez’s plea in the light of Rule 11(b)(1)(M) nor mentions the
waiver provision. (The order pre-dated United States v. Booker,
125 S. Ct. 738, (2005) (holding Sentencing Guidelines only
advisory).)
As to the merits, Rodriguez has not established that his
guilty plea was rendered involuntary. Because he did not object in
district court during rearraignment, Rodriguez’s claims are
reviewed only for plain error. See United States v. Vonn, 535 U.S.
55, 59 (2002). He has not shown that his substantial rights were
affected by any error in the magistrate judge’s explanation of the
availability of appointed counsel at trial. See United States v.
Olano, 507 U.S. 725, 731-37 (1993). In addition, the magistrate
judge appropriately advised Rodriguez: about the elements of the
offense to which he pleaded guilty, see United States v. Ceballos-
Torres, 218 F.3d 409, 413 (5th Cir.), amended on rehearing in part
by, 226 F.3d 651 (5th Cir. 2000), and cert. denied, 531 U.S. 1102
(2001); and that the statutory maximum sentence was life
imprisonment, see United States v. Sias, 227 F.3d 244, 246-47 (5th
2
Cir. 2000). Rodriguez has not established a violation of the Court
Interpreters Act, 28 U.S.C. § 1327(d)(1); the record reflects that
he had access to an interpreter at every stage of the proceeding.
Although the parties did not address it, this court may sua
sponte consider the waiver-of-appeal provision. See United States
v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); cf. United States
v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001)(disregarding a waiver
provision if the Government expressly chooses not to rely upon it).
Rodriguez voluntarily waived his right to appeal his conviction and
sentence, other than claims of ineffective assistance of counsel or
prosecutorial misconduct of constitutional dimension not known to
him at the time of his sentencing. See United States v. Melancon,
972 F.2d 566, 567-68 (5th Cir. 1992). Consequently, review of
certain of Rodriguez’s claims is barred: that the district court
erred in adopting the presentence report, despite misstatements
contained therein; that the district court wrongly departed upward,
despite the Government’s failure to give notice of its intent to
seek an upward departure under 21 U.S.C. § 851; and that the upward
departure violates the Sixth Amendment. See United States v.
McKinney, __ F.3d __, 2005 WL 887153, at *2-3 (5th Cir. 15 Apr.
2005) (holding that, absent a specific provision to the contrary,
a valid appeal-waiver provision in a plea agreement precludes a
claim of Sixth Amendment error under Booker).
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Rodriguez also contends: the Government improperly filed a
superseding indictment to establish greater bargaining power and
breached the plea agreement by requesting an upward departure.
Even if these claims allege prosecutorial misconduct of
constitutional dimension, Rodriguez was aware of them by the time
of sentencing. Therefore, they are barred by the waiver provision.
As discussed, counsel failed to address the issues
specifically noted by this court in its order denying him leave to
withdraw. Accordingly, counsel (David K. Sergi) is ORDERED to show
cause within 30 days why he should not be sanctioned for such
failure to comply with a court order.
AFFIRMED; COUNSEL ORDERED TO SHOW CAUSE WHY SANCTIONS SHOULD NOT
BE IMPOSED
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