     Case: 19-10983      Document: 00515457448         Page: 1    Date Filed: 06/18/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-10983
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 18, 2020
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CARMELO FIGUEROA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:18-CR-74-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Carmelo Figueroa pleaded guilty to one count of assault of a federal
officer resulting in bodily injury, and the district court imposed a within-
Guidelines sentence. As part of his plea agreement, Figueroa waived his right
to appeal his sentence, with limited exceptions not applicable here. He now
challenges the application of two Guidelines enhancements and contends that
the appeal waiver is unenforceable because his plea agreement was not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10983

supported by consideration and because his trial counsel provided ineffective
assistance during the plea bargaining process.         Based on those errors
concerning his plea agreement, Figueroa also seeks to have his plea agreement
and guilty plea vacated.      The Government moves to dismiss the appeal
pursuant to the appeal waiver.
      In the district court, Figueroa did not challenge the validity of the plea
agreement or attempt to withdraw his guilty plea on the ground that the plea
agreement lacked consideration.      Thus, plain-error review applies to his
argument here that the plea agreement is invalid due to lack of consideration.
See Puckett v. United States, 556 U.S. 129, 134–36 (2009); United States v.
Cothran, 302 F.3d 279, 283 (5th Cir. 2002).        In the plea agreement, the
Government agreed to dismiss the other count of Figueroa’s indictment and to
refrain from bringing any additional charges against Figueroa based on the
conduct relating to his guilty plea. Figueroa has not shown any error, much
less plain error, regarding the lack of consideration because those concessions
constitute consideration supporting the plea agreement. See United States v.
Smallwood, 920 F.2d 1231, 1239–40 (5th Cir. 1991); Smith v. Estelle, 562 F.2d
1006, 1008 (5th Cir. 1977).
      In his second argument challenging the enforceability of the appeal
waiver, Figueroa contends that his trial counsel provided ineffective assistance
during the plea bargaining process because counsel failed to adequately
investigate the applicability of the career-offender enhancement under
U.S.S.G. § 4B1.1 and to inform Figueroa of the effect that the career-offender
enhancement would have on his Guidelines range. Figueroa raises a
substantially similar argument regarding the bodily-injury enhancement
under § 2A2.4(b)(2). The record is not sufficiently developed to allow for a fair
evaluation of this ineffective assistance claim on direct appeal. See United



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                                 No. 19-10983

States v. Montes, 602 F.3d 381, 387–88 (5th Cir. 2010). Accordingly, we decline
to consider this claim without prejudice to collateral review. See id.
      Figueroa has not shown that his plea agreement and appeal waiver are
invalid. We affirm his conviction. Because his challenges to the Guidelines
enhancements are barred by the appeal waiver, we dismiss the appeal in part
and grant in part the Government’s motion to dismiss the appeal.
      AFFIRMED IN PART; APPEAL DISMISSED IN PART; MOTION TO
DISMISS GRANTED IN PART.




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