Case: 15-41611 Document: 00513684696 Page: 1 Date Filed: 09/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41611 FILED
Summary Calendar September 20, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OMAR ALEJANDRO PORTILLO-RUIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CR-81-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Omar Alejandro Portillo-Ruiz appeals the sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846. He argues that there is a
conflict between the special conditions of supervised release that were imposed
during the oral pronouncement of his sentence and those that were imposed by
the written judgment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41611 Document: 00513684696 Page: 2 Date Filed: 09/20/2016
No. 15-41611
As part of the plea agreement, Portillo-Ruiz agreed to waive his right to
appeal his conviction and sentence except with respect to an imprisonment
term that exceeded the statutory maximum and with respect to a claim of
ineffective assistance of counsel. Portillo-Ruiz argues that this appeal of his
sentence is not precluded by his appeal waiver because the plea agreement was
of no benefit to him and contains illegal provisions. He contends that the plea
agreement is therefore unenforceable.
Portillo-Ruiz did not challenge the validity of the plea agreement in the
district court or attempt to withdraw his guilty plea on the ground that the
plea agreement lacked consideration. He cannot establish that the district
court plainly erred in accepting the plea agreement as we have never expressly
held that consideration is required to support a valid plea agreement. See
Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Smallwood,
920 F.2d 1231, 1239-40 (5th Cir. 1991). Moreover, the record demonstrates no
reversible plain error with respect to the consideration given by the
Government for Portillo-Ruiz’s plea agreement. See Puckett, 556 U.S. at 135.
Thus, the appeal waiver in Portillo-Ruiz’s plea agreement bars his challenge
to any disparity between the oral sentence and the written judgment. See
United States v. Higgins, 739 F.3d 733, 738-39 (5th Cir. 2014). The judgment
of the district court is AFFIRMED. The Government’s motion for summary
affirmance and its alternative motion for an extension of time to file a brief are
DENIED.
2