United States v. Flores

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 9, 2008
No. 06-41527
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN CARLOS FLORES,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-71-2

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Juan Carlos Flores appeals his guilty-plea conviction and sentence for
conspiracy to distribute or dispense or possess with intent to distribute more
than five kilograms of cocaine. Flores argues that his guilty plea was not
informed and voluntary because he was induced into signing a plea agreement
by his counsel’s erroneous representations concerning the term of imprisonment
to which Flores likely would be sentenced. Flores further argues that district
court erred in its determination of the amount of controlled substances

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 No. 06-41527

attributable to him for sentencing purposes and in its application of sentencing
enhancements based on the involvement of a dangerous weapon and the
importation of methamphetamine.
Flores pleaded guilty pursuant to a plea agreement that contained an
appeal waiver, which bars consideration of all challenges to his conviction and
sentence and precludes Flores from contesting his sentence in any post-
conviction proceeding. Flores reserved the right to appeal any punishment
imposed in excess of the statutory maximum and a claim of ineffective assistance
of counsel that affected the validity of the appeal waiver. The Government seeks
to enforce the waiver and has filed a motion to dismiss based on the waiver-of-
appeal provision in Flores’s plea agreement.
A defendant may waive his statutory right to appeal his sentence if the
waiver is knowing and voluntary. United States v. Bond, 414 F.3d 542, 544 (5th
Cir. 2005). The record demonstrates that Flores understood his right to appeal
and knowingly and voluntarily waived that right. United States v. Portillo, 18
F.3d 290, 292 (5th Cir. 1994). Therefore, the appeal waiver bars consideration
of Flores’s claims. See Bond, 414 F.3d at 544.
Flores nevertheless contends that ineffective assistance of counsel
rendered invalid his guilty plea and the appeal waiver provision. Although
ineffective assistance of counsel claims challenging the plea and waiver
themselves survive the waiver, see United States v. White, 307 F.3d 336, 343 (5th
Cir. 2002), we ordinarily will not address such claims for the first time on direct
appeal where they were not sufficiently developed in the trial court. United
States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001). This is not the rare
case where the record allows a fair evaluation of the claim’s merits. See United
States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992). Flores is not precluded from
bringing a 28 U.S.C. § 2255 motion challenging the validity of his guilty plea and
appeal waiver on the basis of ineffective assistance of counsel. See White, 307
F.3d at 343.

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 No. 06-41527

Accordingly, the judgment of the district court is affirmed. The
Government’s motion to dismiss the appeal is denied.
AFFIRMED; MOTION DENIED

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