     Case: 15-40742      Document: 00513541485         Page: 1    Date Filed: 06/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-40742                                 FILED
                                  Summary Calendar                            June 9, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR MANUEL ESTRADA, also known as Sergio Richard Bustillos, also
known as Richard Sergio Bustillos, also known as Moises Rivera Perez, also
known as Victor Hugo Cisneros, also known as Victor N. Estrada, also known
as Victor Hugo Estrada, also known as Victor Hugo Estrada-Cisneros,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-724-1


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Victor Manuel Estrada pleaded guilty, pursuant to a plea agreement, to
conspiracy to possess with intent to distribute more than 1,000 kilograms of
marijuana, and he was sentenced to 168 months of imprisonment. As part of
his plea agreement, Estrada waived his right to directly appeal his conviction


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40742    Document: 00513541485     Page: 2   Date Filed: 06/09/2016


                                 No. 15-40742

and sentence on any ground except to raise a claim of ineffective assistance of
counsel.
      On appeal, Estrada argues that the district court erroneously applied a
leader or organizer role enhancement under the Sentencing Guidelines; that
the district court violated his right to procedural due process by not
transferring his case to ensure that the same district judge sentenced the
related criminal cases; and that the 168-month sentence constituted cruel and
unusual punishment in violation of the Eighth Amendment. He also argues
that the Government breached the plea agreement. The Government seeks
the enforcement of the appeal waiver contained in the plea agreement and
contends that the appeal must be dismissed.
      In his opening brief, Estrada does not challenge, or even address, the
validity of the appeal waiver, and he has not filed a reply brief to respond to
the Government’s waiver argument.          The record reflects that Estrada
knowingly and voluntarily waived his right to appeal his sentence except in
limited circumstances not present in the instant appeal. See United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Further, the plea agreement
expressly provided that “the Government will recommend the Defendant be
given maximum credit for acceptance of responsibility and a sentence of
imprisonment at the lowest end of the applicable guideline range.” Estrada
has not established a breach of the plea agreement on either point. See United
States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014).
      Because Estrada’s issues for appeal are clearly barred by the valid
waiver, the appeal is dismissed. See United States v. Walters, 732 F.3d 489,
491 (5th Cir. 2013). We caution defense counsel that pursuing an appeal
contrary to a valid waiver that the Government seeks to enforce is a needless




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                                No. 15-40742

waste of resources and could result in sanctions. See United States v. Gaitan,
171 F.3d 222, 223-24 (5th Cir. 1999).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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