     Case: 15-50545         Document: 00513909152          Page: 1       Date Filed: 03/13/2017




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

                                         No. 15-50545
                                                                                           Fifth Circuit

                                                                                         FILED
                                                                                   March 13, 2017

UNITED STATES OF AMERICA,                                                           Lyle W. Cayce
                                                                                         Clerk
                               Plaintiff - Appellee

v.

OSCAR ARMANDO AVILA-JAIMES,

                               Defendant - Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No.1:14-CR-300-1


Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District
Judge. ∗

PER CURIAM: ∗∗
       Appellant Oscar Armando Avila-Jaimes pled guilty to both possession
with intent to distribute cocaine and money laundering. On appeal, Avila-
Jaimes challenges his waiver of appeal, the voluntariness of his guilty plea,
and his sentence. We find no reversible error of fact or law. The judgment and
sentence are AFFIRMED.


       ∗
           Chief District Judge for the Eastern District of Louisiana.

       ∗∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    BACKGROUND
       Avila-Jaimes was involved at a high level in a multi-kilogram cocaine
ring that purchased the drug from sources in Austin and distributed it to
customers in Central Texas. A federal investigation revealed Avila-Jaimes’s
extensive activities in transferring drug proceeds, receiving and distributing
multi-kilo quantities of cocaine, and recruiting others to assist in the
enterprise. The investigation culminated as to Avila-Jaimes in the execution
of a search warrant at his residence, where agents found approximately 10
kilograms of cocaine, 1 a loaded handgun, and $82,312 in drug proceeds.
       Avila-Jaimes was indicted on eight counts but reached a plea deal
covering only two counts of criminal conduct: possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and money
laundering in violation of 18 U.S.C. § 1957. The PSR set his base offense level
at 36 and recommended a four-point enhancement for his role in the offense as
an organizer or leader. After an adjustment for acceptance of responsibility,
Avila-Jaimes’s total offense level amounted to 38. With a criminal history
category of I, his advisory guidelines range was 235 to 293 months. The
government and Avila-Jaimes agreed to a maximum sentence of 240 months
imprisonment, and the plea agreement contained a waiver of appeal and
waiver of post-conviction rights other than for ineffective counsel.                   The
magistrate judge recommended adoption of the plea agreement.
       Prior to sentencing, Avila-Jaimes objected to various aspects of the PSR,
but more important for present purposes, he insisted that his attorney file a
motion to withdraw as counsel just three days before the hearing. The district
court denied the motion to withdraw as counsel on the grounds that the



       1 According to testimony at sentencing, the approximate sale price of 10 kilograms of
cocaine is $388,046.
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                                No. 15-50545
defendant required counsel for the sentencing hearing and no continuance
would be granted if the attorney withdrew. The court then sentenced Avila-
Jaimes to concurrent terms of 240 months imprisonment on the drug count
and 120 months on the money laundering count. The next day, the district
court entered an order clarifying that Avila-Jaimes had not technically moved
to withdraw his guilty plea at the time of sentencing, but had there been a
request, it would have been denied. Avila-Jaimes timely appealed. We discuss
each of his issues in turn.
                               DISCUSSION
      A. Validity of the Appeal Waiver & Guilty Plea
      Avila-Jaimes asserts that he did not knowingly and voluntarily plead
guilty and waive his right to appeal because he required an interpreter and
was not familiar with federal criminal procedure. He contends that the district
court should not have accepted his guilty plea because he was “clearly
confused” about his rights at both his plea colloquy and sentencing hearing.
      This court reviews de novo both the validity of a guilty plea and whether
an appeal waiver bars an appeal. United States v. Reasor, 418 F.3d 466, 478
(5th Cir.2005); United States v. Scallon, 683 F.3d 680, 682 (5th Cir. 2012). A
guilty plea must be voluntary, knowing, and intelligent. Brady v. United
States, 397 U.S. 742, 90 S. Ct. 1463, 1468–69 (1970).     “When determining
whether a plea is voluntary, this court considers all relevant circumstances
and examines whether the conditions for a valid plea have been met.” United
States v. Washington, 480 F.3d 309, 315 (5th Cir. 2007). Among the conditions
for a valid plea, the defendant should have notice of the charges against him,
understand the constitutional protections waived, and have access to the
advice of counsel. Id. A defendant’s statement that his plea is knowing and
voluntary creates a presumption that the plea is valid. Id. at 316. Similarly,
a defendant may waive his right to appeal as part of a valid plea agreement
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“provided (1) his or her waiver is knowing and voluntary, and (2) the waiver
applies to the circumstances at hand, based on the plain language of the
agreement.” United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). If a
defendant states on the record that he understands the waiver of appeal, the
defendant’s “later contention that he did not really understand will not
invalidate the waiver.” Id.
      The record, which need not be recited in full, demonstrates the
thoroughness of the magistrate judge’s conduct of Avila-Jaimes’s Rule 11
hearing. The magistrate judge specifically addressed the waiver of appeal
provision in the plea agreement and told Avila-Jaimes that he “won’t have any
right to challenge the sentence or the fact that [he’ll] be found guilty based
upon [his] plea.”    The magistrate judge emphasized that Avila-Jaimes is
“giving up [his] right to appeal or to challenge either the conviction for these
offenses or the sentence that will follow.” Avila-Jaimes acknowledged that he
understood this provision.
      The magistrate judge then reviewed his charge for unlawful possession
with intent to distribute a controlled substance and expressly asked Avila-
Jaimes if he understood the charge; Avila-Jaimes affirmed his understanding
of the charge and his guilty conduct. When the magistrate judge asked if he
wished to plead guilty to the money laundering charge, Avila-Jaimes replied
that he was pleading guilty but he had “the right to fight for against what I’m
being charged with.” The judge then summarized the facts of the money
laundering charge and explained to Avila-Jaimes that if he pled guilty, he was
admitting to these facts as stated in his plea agreement and to the money
laundering charge. Avila-Jaimes replied that he understood what he was
admitting to, accepted the guilty plea, and affirmed that he made the guilty
plea freely and voluntarily. Later in the Rule 11 proceeding, the judge again
asked Avila-Jaimes if he was comfortable with his decision to plead guilty. The
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judge explained that Avila-Jaimes would only be able to contest the details of
his sentence, such as how much money was transported, but he was “not going
to be able to say [that he] didn’t do this at all.” Avila-Jaimes again affirmed
that he was comfortable with this plea.
      At the sentencing hearing before the district court, Avila-Jaimes
complained that he was not given an opportunity to present evidence and
asserted that he had the “right to fight everything.” To the extent these
statements cast doubt on the appellant’s previous acceptance of the guilty plea,
the district court made a credibility finding against Avila-Jaimes. The court
found it difficult to believe that Avila-James would not have pled guilty under
the circumstances of his crimes, for which much of the evidence came from his
mouth in tape recorded conversations. Further, the court disbelieved that
Avila-Jaimes would rather have gone to trial on an eight-count indictment
rather than plead guilty to only two counts. Consequently, the court accepted
the plea agreement and imposed a total sentence of 240 months and five years
of supervised release.
      The record demonstrates that Avila-Jaimes knowingly and voluntarily
entered into his guilty plea and accepted the consequences of the appeal
waiver. Jacobs, 635 F.3d at 781. Avila-Jaimes was provided with a translator.
That this was his first time in court, and he may not have had experience with
federal criminal procedure, is immaterial to whether he voluntarily and freely
assented to a guilty plea. Avila-Jaimes repeatedly stated on the record that he
understood his plea agreement and knew that he could not appeal the
determination of his guilt or the calculation of his sentence. Avila-Jaimes may
not now retroactively inject confusion into the record by contending that he did
not really understand his guilty plea or appeal waiver. Id. The district court
disbelieved his attempts to contradict the plea agreement, and Avila-Jaimes’s
appellate arguments are simply an attack on the court’s findings of fact. The
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court justifiably credited his multiple statements accepting the guilty plea,
which “create[d] the presumption that in fact the plea is valid.” Washington,
480 F.3d at 316. Consequently, Avila-Jaimes will be “held to the bargain to
which he agreed.” United States v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994).
      Similarly meritless is Avila-Jaimes’s contention that the district court
erred in failing to grant his “motion” to withdraw his guilty plea. Avila-Jaimes
never filed such a motion, although the government responded as if he had
done so. Instead, he directed his attorney to file a motion to withdraw as
counsel, citing irreconcilable conflict. The district court’s June 9 order denied
the motion for withdrawal of counsel with no mention of a motion to withdraw
the plea. On June 11, the same day as the sentencing hearing, the district
court issued another order observing that there was no pending motion to
withdraw the plea, but the order nevertheless analyzed the Carr factors. The
court concluded that had there been such a request, it would have been denied.
United States v. Carr, 740 F.2d 339, 343 (5th Cir. 1984). Despite the district
court’s telegraphing a ruling on this issue, this court cannot rule on issues not
raised below.     In any event, Avila-Jaimes presents no more compelling
argument to withdraw the guilty plea than he did to prevent its adoption by
the district court.
      B. Ineffective Assistance of Counsel
      Avila-Jaimes argues that his attorney provided ineffective assistance of
counsel at the plea and sentencing stages. He contends that his attorney
made little or no effort to keep him apprised or to explain what was
transpiring. An ineffective assistance of counsel claim cannot be litigated on
direct appeal unless it was previously presented to the district court. United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). This court considers such
claims only in “rare cases in which the record allows a reviewing court to fairly
evaluate the merits of the claim.” Id. (internal quotations and citation
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omitted).    The record here is too undeveloped to permit review of counsel’s
performance.        Avila-Jaimes’s ineffective assistance of counsel claim is
therefore denied without prejudice to collateral review.          United States v.
Higdon, 832 F.3d 312, 314 (5th Cir. 1987).
      C. Four Point Enhancement
      Finally, Avila-Jaimes and the government dispute whether the appeal
waiver bars this court from considering the applicability of the four point
leader/organizer enhancement imposed by the district court under U.S.S.G.
§ 3B1.1(a). Avila-Jaimes contends that at best he should have received a three
point enhancement, which would have resulted in a total offense level of 37
and a guidelines range of 210–262 months imprisonment, given his criminal
history category.
      The appeal waiver has an exception where the sentence imposed exceeds
the statutory maximum, or exceeds the applicable Guideline range.               The
exception does not apply here. Even if the district court should have enhanced
his sentence by only three levels instead of four for his role in the offense, Avila-
Jaimes’s 240 month sentence nevertheless falls within the Guidelines range of
both offense levels. Because Avila-Jaimes’s imposed sentence does not exceed
the alleged applicable Guidelines range, the appeal waiver bars this challenge.
      For the foregoing reasons, we AFFIRM the appellant’s conviction and
sentence.




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