United States v. Rodriguez

Case: 21-10812 Document: 00516382016 Page: 1 Date Filed: 07/05/2022

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
No. 21-10812 July 5, 2022
Summary Calendar Lyle W. Cayce
Clerk

United States of America,

Plaintiff—Appellee,

versus

Johnny Roy Rodriguez, Jr.,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-339-23

Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Johnny Roy Rodriguez, Jr., pleaded guilty to conspiracy to possess
with intent to distribute 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine. Shortly before
sentencing, he moved to withdraw his guilty plea, which the district court

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-10812

denied without a hearing. He ultimately was sentenced to 480 months of
imprisonment.
In his first issue on appeal, Rodriguez challenges the district court’s
decision denying his withdrawal motion. A defendant may withdraw a guilty
plea after it has been accepted by the district court but before sentencing if
he shows a “fair and just reason” for seeking withdrawal. Fed. R. Crim.
P. 11(d)(2)(B). Although Rodriguez generally waived his right to appeal as
part of a plea agreement, because the Government does not seek to enforce
the waiver as to this issue, see United States v. Story, 439 F.3d 226, 231 (5th
Cir. 2006), we review the denial of the motion to withdraw the plea for an
abuse of discretion, United States v. Strother, 977 F.3d 438, 443 (5th Cir.
2020). Our review of the record, Rodriguez’s arguments, and the factors
originally set forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.
1984), shows no abuse of discretion by the district court in denying
Rodriguez’s motion to withdraw his plea. See Strother, 977 F.3d at 443-47.
Therefore, the denial of his motion is affirmed.
Rodriguez also contends that the imposition of a sentence of 480
months, which was a guidelines sentence, was greater than necessary under
18 U.S.C. § 3553(a). The Government argues that Rodriguez’s substantive
reasonableness challenge to his sentence is barred by the waiver of appeal
provision and that this portion of his appeal should be dismissed. We review
de novo whether an appeal waiver bars an appeal. United States v. Keele, 755
F.3d 752, 754 (5th Cir. 2014). First, we consider whether the waiver was
knowing and voluntary and, second, we consider whether the plain language
of the waiver applies to the issues to be raised on appeal. Id.
For a waiver to be knowing and voluntary, a defendant must know that
he had a right to appeal and that he was giving up that right. See United States
v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Based on the plea agreement and

2
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No. 21-10812

the advice he received at rearraignment, Rodriguez’s waiver was knowing
and voluntary. See id. Next, Rodriguez generally waived his right to appeal
his conviction and sentence, with certain exceptions that do not apply to the
issue he raises. Based on the plain language of the plea agreement, the appeal
waiver bars this challenge to his sentence. See Keele, 755 F.3d at 754.
Therefore, this portion of his appeal is dismissed. See Story, 439 F.3d at 230-
31 & n.5.
Rodriguez briefly argues that, despite the appeal waiver, he should be
allowed to appeal his 480-month sentence “in the interest of justice.”
Although he does not cite any caselaw in support, some circuits do recognize
a “miscarriage of justice” exception. United States v. Barnes, 953 F.3d 383,
389 (5th Cir. 2020). We have declined to explicitly adopt or reject this
exception. Id. In addition, because Rodriguez has “only briefly allud[ed] to
that theory,” we conclude that he “has waived any contention that such an
exception applies.” Id.
AFFIRMED IN PART; DISMISSED IN PART. Rodriguez’s
pro se motion to appoint new counsel is DENIED as untimely. See United
States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).