                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            December 3, 2002
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 01-20602
                         Summary Calendar



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

                                versus

TORIBIO FERNANDEZ,

          Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H:95-CR-142-15



Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Toribio Fernandez appeals his guilty-plea conviction and life

sentence for conspiracy to possess with intent to distribute more

than 1000 kilograms of marijuana.    Fernandez acknowledges that in

his written plea agreement he made an otherwise valid waiver of his

right to appeal his sentence, but he contends that the waiver is

without effect because the plea agreement is invalid.          He also

asserts that the district court abused its discretion in refusing

     *
      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this opinion should not be published and is not precedent except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.
to allow him to withdraw his plea and that the district court

misapplied the Sentencing Guidelines.

     Appellant first argues that the plea agreement is invalid as

an unconscionable contract of adhesion, essentially because he

received a life sentence.         Even if pleading guilty in the face of

a certain life sentence is unconscionable, Fernandez’s case does

not present that scenario.             Rather, the plea bargain into which

Appellant entered included only the risk of a life sentence.

Pursuant to the agreement, the government agreed to recommend a

sentence at the low end of the guidelines range, in addition to

dismissing the other charges against him and foregoing forfeiture

of a ranch Fernandez’s father allegedly owned unless forfeiture was

later    justified   by     new    information.          Thus,     we   find   no

unconscionable terms in the agreement.              Furthermore, the mere fact

that he received a harsher sentence than what he subjectively

expected to receive does not invalidate the agreement.1                 Fernandez

was fully    informed     that    he    faced   a   potential    life   sentence,

depending on the presentence investigation.2               He stated that he

understood that he would not be allowed to withdraw his plea if the

sentence was more severe than he expected. Fernandez has therefore

failed to show that the plea agreement is invalid due to the

     1
       Daniel v. Cockrell, 283 F.3d 697, 703-04 (5th Cir.), cert.
denied, – U.S. –, 2002 WL 1434299 (Oct. 7, 2002).
     2
       In the plea colloquy, the district court explained to
Fernandez that he was susceptible to a sentence anywhere from 10
years to life.

                                        -2-
unconscionability of its terms.

      Fernandez also contends that the plea was invalid due to an

insufficient factual basis.           However, the factual basis appearing

in the record was “sufficiently specific to allow the court to

determine that the defendant’s conduct was within the ambit of that

defined as       criminal.”3     At    the    rearraignment,     the   government

described the conspiracy to distribute more than 1000 kilograms of

marijuana and stated that Fernandez helped to transport marijuana

and   to   buy    a   vehicle   used   for    transporting      it.     Appellant

corroborated       these   statements        under    oath.      The    testimony

establishes that Fernandez participated in the crime to which he

pleaded–a conspiracy to possess with intent to distribute more than

1000 kilograms of marijuana.

      Fernandez also contends that the plea agreement is invalid

because the district court did not expressly accept or reject the

agreement at the rearraignment.               The district court implicitly

accepted the       agreement,    however,      by    not   rejecting   it   and   by

ensuring that Fernandez received the benefit of the agreement

through the promised dismissal of the other counts against him.4

      3
          United States v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir.
1977).
      4
       United States v. Morales-Sosa, 191 F.3d 586, 588 (5th Cir.
1999) (“We are also persuaded by the government's argument that the
district court did in fact implicitly accept the plea agreement.
Had the district court rejected Sosa's agreement, the court would
have been required, under Rule 11(e)(4), to inform the parties of
this fact and to advise Sosa personally that the court was not
bound by the agreement. Here, the fact that the district court did

                                        -3-
     Appellant additionally asserts that the plea was induced by

fraud.    After a hearing, the district court rejected Fernandez’s

assertions of fraud in the inducement based on a finding that

Fernandez lacked any credibility.       We will not second-guess the

district court’s credibility assessment.5

     Fernandez also appeals the district court’s denial of his

motion to withdraw the guilty plea.      We review the ruling for an

abuse of discretion.6     Fernandez failed to carry his burden of

establishing a fair and just reason for withdrawing his plea.7

Based on Fernandez’s lack of credibility, the district court

determined that the plea was knowing and voluntary and not the

result of ineffective assistance of counsel.

     As Fernandez acknowledges, if his plea agreement is valid, so

is his waiver of his right to appeal his sentence.      The plea and

the agreement are valid; therefore Appellant has waived his right

to challenge the district court’s calculation of the sentence.

Consequently, we need not address his contentions that the court

misapplied the Sentencing Guidelines.



not follow the procedures of Rule 11(e)(4) coupled with the fact
that, immediately following sentencing, Sosa received the benefits
of the plea agreement in the dismissal of the original indictment
and a downward departure from the applicable guidelines, indicate
that the court implicitly accepted the plea agreement.”).
     5
         United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).
     6
         United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991).
     7
         United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988).

                                  -4-
AFFIRMED.




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