     Case: 19-50475      Document: 00515443091         Page: 1    Date Filed: 06/05/2020




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

                                    No. 19-50475
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 5, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

BRAYAN JASSIEL LEYVA-PERAZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-540-1


Before HIGGINBOTHAM, HO, and ENGELHARDT,
PER CURIAM: *
       Brayan Jassiel Leyva-Peraza pleaded guilty to transporting an illegal
alien for commercial advantage or private financial gain resulting in the alien’s
death and was sentenced to a within-guidelines prison term of 71 months and
to three years of supervised release. See 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(iv).
He challenges the appeal waiver in his plea agreement on the bases that (a)
the district court did not comply with the requirement of Federal Rule of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50475

Criminal Procedure 11(b)(1)(G) because the court failed to advise him of the
nature of the charge to which he pleaded and (b) the plea agreement provision
that bars him from seeking a variance sentence is unconscionable. In his view,
compliance requires more than having the prosecutor read the charge and
having the defendant give a single response to a routine question concerning
his understanding of the charge. We review for plain error because Leyva-
Peraza had, but did not take, “the opportunity to seek vindication of [his] rights
in district court.” Puckett v. United States, 556 U.S. 129, 136 (2009); see United
States v. White, 307 F.3d 336, 343 (5th Cir. 2002).
      At rearraignment, Leyva-Peraza informed the court that nothing
impeded him from understanding the proceeding. He stated that he reviewed
the terms of the plea agreement with his counsel and understood those terms.
After the court recited the charge set forth in the count of conviction, Leyva-
Peraza stated that he understood the charge. He expressed satisfaction with
his attorney’s representation. After the prosecutor read the count of conviction
to him in open court, Leyva-Peraza stated that he understood the charge in
that count and wished to plead guilty to it.        Further, he stated that he
understood the factual basis recited in the plea agreement and had discussed
the factual basis with his counsel. Leyva-Peraza told the court that his plea
was free and voluntary and that he had not been threatened or forced to plead
guilty. He answered no when asked if anyone had predicted or promised a
specific sentence in his case. He again answered no when asked if he had
questions about the charge in the count of conviction or his plea to that charge.
      In light of his rearraignment testimony and the strong presumption of
truthfulness attached to it, Leyva-Peraza at best shows only that the question
whether the district court complied with Rule 11(b)(1)(G) is subject to
reasonable debate, which is insufficient to establish plain error. See Puckett,



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                                 No. 19-50475

556 U.S. at 136; United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009);
see also United States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009).
Moreover, Leyva-Peraza fails to show that his claim of noncompliance is
“entirely clear under the existing case authority,” and consequently the claim
is “doom[ed] . . . for plain error” review. United States v. Trejo, 610 F.3d 308,
319 (5th Cir. 2010). Equally unavailing is his novel and conclusory contention
that his plea agreement was unconscionable.         See id.; Garrido-Morato v.
Gonzales, 485 F.3d 319, 322 n.1 (5th Cir. 2007).
      As shown above, Leyva-Peraza fails on plain error review to establish
that his plea agreement is invalid.     And he offers no other argument for
invalidating the appeal waiver. Therefore, that waiver bars this appeal. See
United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011).
      APPEAL DISMISSED.




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