     Case: 10-41105     Document: 00511633300         Page: 1     Date Filed: 10/14/2011




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

                                                                            FILED
                                                                         October 14, 2011
                                     No. 10-41105
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN CARLOS SALDIVAR,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-23-8


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Juan Carlos Saldivar appeals his guilty plea
conviction and 120-month sentence for conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. He
contends that the district court erroneously sentenced him based on the
negotiated amount of cocaine rather than the amount of cocaine actually
delivered.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-41105

      Saldivar’s contention is barred by the waiver-of-appeal provision in his
plea agreement, which was knowing, voluntary, and enforceable. See United
States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994); FED. R. CRIM. P.
11(b)(1)(N). To the extent that Saldivar contests the sufficiency of the factual
basis with respect to drug quantity, which we can consider despite the appellate
waiver, see United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008), and
even if this claim were not abandoned by Saldivar’s failure to address it in his
brief or reply brief, he has not shown that the district court plainly erred in
finding that the factual basis was sufficient to support his guilty plea, see United
States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006). In his statement of
facts, Saldivar stipulated that he knowingly and intentionally agreed to possess
with intent to distribute at least five kilograms but less than 15 kilograms of
cocaine; that the conspiracy involved at least five kilograms but less than 15
kilograms of cocaine; that he agreed to sell 10 kilograms of cocaine to a
cooperating defendant; and that he delivered one kilogram of cocaine to that
defendant and agreed to deliver nine additional kilograms if that defendant liked
the quality. Moreover, at rearraignment, Saldivar stated that everything in the
factual statement was true and correct.         Saldivar therefore has failed to
establish that the district court committed plain error in determining that a
sufficient factual basis supported his guilty plea. See Castro-Trevino, 464 F.3d
at 541.
      Saldivar also asserts that law enforcement engaged in sentence-factor
manipulation and, as a result, violated the Due Process Clause. We have yet to
decide whether sentencing entrapment is a viable defense. United States v.
Snow, 309 F.3d 294, 295 (5th Cir. 2002) (citing United States v. Washington, 44
F.3d 1271, 1280 & n.28 (5th Cir. 1995)). As the viability of a sentencing
entrapment defense remains unresolved in this circuit, Saldivar cannot show
that any error made by the district court with respect to this issue was plain
error. See United States v. Trejo, 610 F.3d 308, 319; United States v. Salinas,

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  Case: 10-41105    Document: 00511633300     Page: 3   Date Filed: 10/14/2011

                                 No. 10-41105

480 F.3d 750, 759 (5th Cir. 2007). Accordingly, the district court’s judgment is
AFFIRMED.




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