United States v. Rolando Minano

Case: 16-11406 Document: 00514170701 Page: 1 Date Filed: 09/26/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11406 FILED
Summary Calendar September 26, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROLANDO FRANCISCO MINANO,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-273-1

Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Rolando Francisco Minano pleaded guilty to conspiracy to commit mail
fraud and was sentenced, within the guidelines, to 78 months of imprisonment.
His sentence included a 14-level enhancement because he was determined to
be accountable for a loss to the government of $665,962.76. See U.S.S.G.
§ 2B1.1(b)(1)(H). In pleading guilty, Minano waived his right to appeal except,
relevantly, to challenge an arithmetic error at sentencing. He now appeals,

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11406 Document: 00514170701 Page: 2 Date Filed: 09/26/2017

No. 16-11406

alleging that the district court failed to subtract from the attributable loss total
money that the Government owed to taxpayers as refunds. Minano contends
that the appeal waiver does not bar this claim because the court’s error
involved arithmetic. The Government disagrees and asks us to enforce the
waiver. See United States v. Story, 439 F.3d 226, 230 n.5 (5th Cir. 2006).
“This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In so doing, we
“conduct a two-step inquiry: (1) whether the waiver was knowing and
voluntary and (2) whether the waiver applies to the circumstances at hand,
based on the plain language of the agreement.” United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005). We easily resolve the first inquiry against
Minano because his assertions that his plea was not knowing or voluntary are
entirely conclusory. See United States v. Charles, 469 F.3d 402, 408 (5th Cir.
2006). In any event, our review of the record satisfies us that Minano’s waiver
of his appeal rights was both knowing and voluntary. See Bond, 414 F.3d at
544; United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005).
Furthermore, as the record does not suggest that the parties intended
the term “arithmetic error” in the appeal waiver to have any special meaning,
we construe it to mean simply “an error involving a mathematical calculation.”
United States v. Logan, 498 F. App’x 445, 446 (5th Cir. 2012) (internal
quotation marks and citation omitted). The error Minano complains of is not
mathematical, as we have used that term. See id. Calculating the loss amount
under § 2B1.1 requires the district court to exercise its judgment in assessing
a nonexhaustive list of factors rather than to apply a strict mathematical
formula. By attacking the district court’s § 2B1.1 assessment, Minano
challenges the court’s application of that Guideline, not the correctness of its
arithmetic. See id.

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No. 16-11406

In light of the foregoing, we hold that Minano’s challenge to the § 2B1.1
enhancement is barred by the appeal waiver. See Bond, 414 F.3d at 544.
Accordingly, the appeal is DISMISSED.

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