     Case: 16-20583      Document: 00514556849         Page: 1    Date Filed: 07/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-20583                              FILED
                                                                            July 16, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

ADELIO DE JESUS BATRES, also known as Muneco,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-497-4


Before WIENER, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Adelio de Jesus Batres pleaded guilty to conspiracy
to commit sex trafficking of minors, in violation of 18 U.S.C. §1594(c). In so
doing, he expressly waived the right to appeal his sentence and order of
restitution, with only a few narrow exceptions. The district court sentenced
him to more than 27 years of incarceration and ordered him to pay
approximately ninety thousand dollars in restitution to the victims of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20583
conspiracy, viz., young women and girls who were exploited by the
coconspirators, often against their will.
      Notwithstanding his waiver, Batres has attempted to raise numerous
issues on appeal. He contends, inter alia, that (1) his plea was invalid, (2) the
Government and the district court breached the plea agreement, (3) the district
court’s factual findings at sentencing were erroneous, (4) his sentencing
counsel was ineffective, and (5) a portion of the restitution award was
improper. Batres’s first three challenges fall outside the confines of his appeal
waiver, but ultimately do not free him from it. His challenges to his sentence
and order of restitution are subject to his appeal waiver.         His claim of
ineffective assistance of counsel is unripe. We therefore AFFIRM in part and
DISMISS in part.
                                   ANALYSIS
                                        1.
      Batres claims that the district court plainly erred when it determined
there was sufficient evidence to support his plea. His claim of error is based
on the fact that he only admitted to facts that would establish one of the two
alternative charges for violating his statute of conviction. His contention fails
because a factual basis need establish only one of two or more alternatives. An
indictment may conjunctively charge multiple means of violating a statute.
When that occurs, the Government need prove only one of two or more charged
means to sustain a conviction.      Thus, in his guilty plea, Batres was only
required to admit facts necessary to sustain one of such alternatives, here sex
trafficking of a minor. This claim of error fails.
                                        2.
      Batres also asserts that the district court plainly erred when it
determined that the Government did not breach its promise not to oppose a
reduction for acceptance of responsibility. We disagree. The Government only
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                                    No. 16-20583
promised not to oppose a reduction for acceptance of responsibility if Batres
first accepted responsibility, as contemplated by the Sentencing Guidelines.
The parties essentially formed a unilateral contract in this regard under which
the Government’s obligation to perform would only arise if Batres first
performed his obligation. But he repeatedly denied his guilt and tried to
minimize his culpability.         Batres never offered any information to the
Probation Office to demonstrate acceptance of responsibility. As he failed to
live up to his end of the bargain, the Government’s obligation to perform never
arose.      Additionally, the Government only proffered facts that would
demonstrate       that   Batres   had   not    accepted   responsibility;   it   never
recommended that his sentence not be reduced. The Government did not
violate its obligation under the plea agreement.
                                          3.
         Batres next insists that the district court plainly erred when it denied a
reduction for acceptance of responsibility.         He bases this claim on the
Government’s promise not to oppose such a reduction. This contention also
fails. Although the subject portion of the plea agreement binds both Batres
and the Government, it does not bind the district court. The portion of the plea
agreement in question is governed by FRCP 11(c)(1)(B), which provides that a
Government sentencing “recommendation or request does not bind the court.”
Batres appears to be arguing that, because subsection (A) of Rule 11(c)(1)
governs a portion of his plea agreement, the district court was not free to reject
other portions. He fails to acknowledge, however, that different portions of
Rule 11(c)(1) may govern different parts to the plea agreement: The district
court is free to reject portions governed by subsection (B) even if it would be
required to reject the plea agreement in full if it were to reject a portion
governed by subsections (A) or (C). The court did not plainly err in this respect.


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                                  No. 16-20583
                                        4.
      Batres also contends that the district court plainly erred in a number of
its factual findings at sentencing. Even if we assume, arguendo, that his
appeal waiver does not apply to this contention, the district court’s factual
findings are not subject to plain error. Batres’s plea agreement’s appeal waiver
bars all such claims of error. And even if this were not so, our precedent forbids
any appellate review of factual findings at sentencing when the defendant has
failed to object to them in the sentencing court, as Batres failed to here.
                                        5.
      Batres claims, for the first time on appeal, that his counsel was
ineffective for failing to raise the sentencing issues that he raises here. But
his claim of ineffective assistance of counsel is not ripe. We do not review such
claims on direct appeal when they have not been raised in the district court.
Batres never did so, and his briefing of this issue on appeal is inadequate. He
addresses this issue in two pages without any explanation of how counsel’s
performance fell below the standards set by prevailing professional norms or
how counsel’s failure to object was prejudicial. Not only is his claim unripe,
but he appears to have forfeited it through inadequate briefing.
                                        6.
      Finally, Batres contends that his waiver of appeal does not bar his
challenge to the court’s restitution order. Specifically, he claims that the
district court plainly erred when it ordered restitution to a victim who was not
identified in the Pretrial Investigation Report (PSR). Although we are satisfied
that his appeal waiver does apply to this restitution claim, we are equally
satisfied that the district court did not plainly err in the contested restitution
order. Batres’s appeal waiver clearly bars any challenge to the sentencing
court’s restitution order; but even if we were to assume that it does not, Batres


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                                 No. 16-20583
has failed to establish plain error because there is no requirement that a victim
of the charged offense be identified in the PSR.
                                CONCLUSION
      After reviewing the parties’ briefs and exhibits, considering the record
on appeal, and hearing the oral arguments of opposing counsel, we AFFIRM
some of the rulings of the district court and DISMISS the rest for the reasons
set forth above.




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