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

                                                 FILED
                                                                            July 20, 2009
                                     No. 07-51415
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

RANDY GAITAN CASTRO, also known as Peabody

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:07-CR-31-2


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent Randy Gaitan Castro has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Castro has filed a response and requested the appointment
of new counsel. Our independent review of the record, counsel’s brief, and
Castro’s response discloses no nonfrivolous issue for appeal.
                                              I.
       The Government indicted Randy Gaitan Castro on one count of conspiracy
to possess one or more kilograms of heroin with intent to distribute and three


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 07-51415

counts of possession of heroin with intent to distribute. Castro pleaded guilty
by a written plea agreement to the conspiracy count in exchange for a sentence
of not more than thirty years in prison and five years of supervised release and
the Government’s agreement to drop the remaining counts. In the factual basis
for his plea, he stipulated that he had been part of a drug trafficking
organization that “obtain[ed] loads of heroin from Mexico on a regular basis[,]”
repackaged it into smaller quantities, and distributed it. As a term of the plea
agreement, Castro “voluntarily and knowingly waive[d] any right to appeal both
his conviction and his sentence, including any appeal right conferred by 18
U.S.C. § 3742, as amended by . . . U.S. v Booker and Fanfan.” In a separate
paragraph, he waived the right to collaterally attack his conviction and sentence,
although he reserved “the right to challenge the sentence to the extent that it is
the result of a violation of the Defendant’s constitutional rights based on claims
of ineffective assistance of counsel or prosecutorial misconduct of constitutional
dimension.” He asserted in the signed agreement that his attorney advised him
of the nature of the charges, the possible defenses, and the range of possible
sentences and that he was “satisfied that [his] counsel . . . provided competent
representation.”
      Using the 2007 Guidelines, the probation officer assigned a base offense
level of 36 because the offense involved at least 14.86 kilograms of heroin. The
officer recommended a two-level enhancement because dangerous weapons were
possessed in conjunction with the offense. She recommended another four-level
increase because Castro was a leader or organizer of criminal activity involving
at least five participants.    After a three-level downward adjustment for
acceptance of responsibility, the officer recommended a total offense level of 39.
That score, combined with Castro’s criminal history category of II, resulted in a
guidelines sentencing range of 292 to 365 months in prison. Castro did not
object to the PSR.



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      The district court found that Castro was the leader or organizer of the
heroin distribution organization.    It also found that an earlier sentence of
probation had not deterred him from criminal activity.             Weighing the
seriousness of the crime and the particular facts and circumstances of the case
under 18 U.S.C. § 3353(a), the district court determined that a guidelines
sentence was appropriate. The court sentenced Castro at the bottom of the
range to 292 months in prison and a five-year term of supervised release. It
imposed a $100 special assessment and a $1,000 fine. Castro filed a timely
notice of appeal.
      The attorney appointed to represent Castro moved to withdraw and filed
a brief pursuant to Anders v. California, 386 U.S. at 744, asserting that there
are no nonfrivolous issues for appeal. In compliance with United States v. Story,
439 F.3d 226, 231 (5th Cir. 2006), and United States v. Acquaye, 452 F.3d 380,
382 (5th Cir. 2006), counsel certified that the Government seeks to enforce
Castro’s appeal waiver. Counsel contends that, because of Castro’s knowing and
voluntary appeal waiver, and because he lacks a valid claim for ineffective
assistance of counsel or for prosecutorial misconduct, no nonfrivolous issues exist
to support the appeal.
      Castro filed a response asserting that he was coerced into pleading guilty
by his attorney.     He asserts that counsel threatened him and provided
incomplete information and misleading advice. He notes that he was in a special
education program before dropping out of high school and asserts that he was
unable to read or understand the indictment and the plea agreement.
                                        II.
      Because this case involves an appeal waiver that the Government seeks
to enforce, to determine whether the waiver bars Castro’s appeal, this Court
considers “(1) whether the waiver was knowing and voluntary and (2) whether
the waiver applies to the circumstances at hand, based on the plain language of
the agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (citing

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United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005)). Federal Rule
of Criminal Procedure 11 “ensure[s] that a guilty plea is knowing and voluntary,
by laying out the steps a trial judge must take before accepting such a plea.”
United States v. Vonn, 535 U.S. 55, 58 (2002). Because Castro did not object to
the Rule 11 colloquy, it is reviewed only for plain error. See id. at 59.
      Castro’s assertions that he was under duress from his attorney’s actions
and that he did not understand the charges against him or the plea agreement
are not supported by the record.      At the outset of the rearraignment, the
Magistrate Judge delivered careful instructions to Castro:
      Over the next few minutes, I’m going to be asking you several
      questions, and the purpose of my questions is to make sure you
      understand what you’re doing by pleading guilty. If you have any
      questions, please stop me and ask your questions. Or if you need
      more time to talk to your lawyers, please just let me know that
      because it’s important that if you have any questions or if you don’t
      understand something that you have that taken care of today. You
      can’t come back later and say that you didn’t know what you were
      doing or you didn’t understand something. So will . . . you do that?
Castro responded, “Yes, sir.” Throughout the subsequent hearing, he never
indicated that he did not understand the charges against him or the plea
agreement, and he never asked any questions. Even after another defendant
paused to confer with his attorney before entering his plea, Castro assured the
Magistrate Judge that he did not need any additional time to confer with his
counsel, and proceeded to plead guilty.
      Castro now asserts that he was under duress when he pleaded guilty
because his attorney told him that he would receive life in prison if he did not
accept the plea offer. However, during his rearraignment, Castro testified that
he was pleading guilty because he was guilty “and for no other reason” and that
his guilty plea was given “freely and voluntarily.” He testified that no one forced
him to plead guilty or promised him anything other than what was in the plea
agreement.    When the Magistrate Judge asked him specifically whether


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“anybody made any promise or prediction as to what your sentence will be in this
case, other than what I have told you,” Castro responded, “No, sir.”
      Castro also complains that his attorney did not explain the charges or the
plea agreement to him, despite his requests. He asserts that he would not have
pleaded guilty if counsel had not misrepresented the situation and refused to
explain things to him. He also asserts that counsel pressed him to say “yes” to
the Magistrate Judge’s questions. Again Castro’s allegations are unsupported
by the record. During his rearraignment, his attorney told the Magistrate Judge
that she discussed the case with Castro, that she talked to him about the
charges and any possible defenses, that she explained his constitutional and
statutory rights, and that she believed him to have both a factual and a rational
understanding of the guilty plea. Castro himself testified that he had enough
time to discuss his case with counsel and that they discussed the charges against
him and his possible defenses. He testified that he was satisfied with counsel’s
representation. In addition, the Magistrate Judge himself explained the charge
to Castro before the guilty plea. Castro stated that he understood. As noted
above, he did not ask the Magistrate Judge any questions.
      The record also does not support Castro’s claim that he could not
understand the terms of the plea agreement because he was in the special
education program and did not finish high school. The PSR establishes that,
although Castro was in special education classes, he remained in high school
until the twelfth grade. During the rearraignment, the Magistrate Judge asked
Castro whether he suffered from any mental problem that would prevent him
from understanding the proceeding, and Castro responded, “No, sir.”
      Castro alleges that, when the district court asked him whether he
understood that he was waiving his right to appeal, he responded yes only
because his attorney nudged him and told him to do so. The allegation is not
supported by the record. The Magistrate Judge carefully described the appeal
waiver to Castro, telling him that he was waiving “all of the rights that you have

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to appeal your sentence. So if the court sentences you between ten years and
thirty years, you can’t appeal that sentence. That’s going to be the sentence that
you will have.” Castro stated that he understood, and there is no indication in
the transcript that counsel spoke to him before he answered. The Magistrate
Judge then asked whether Castro had any questions, and he responded, “No,
sir.”
        In sum, there is no evidentiary support in the record for Castro’s claim
that his plea was unknowing or involuntary. His responses to the Magistrate
Judge’s questions indicate that he understood the proceedings, was competent
to enter a guilty plea, and was aware of the consequences of his plea. Castro’s
in-court declarations under oath carry a strong presumption of verity that his
conclusional assertions on appeal cannot overcome. See Blackledge v. Allison,
431 U.S. 63, 73-74 (1977); United States v. Lampazianie, 251 F.3d 519, 524 (5th
Cir. 2001). Accordingly, under the current record, we conclude that the plea
agreement’s explicit, unambiguous appeal waiver was both knowing and
voluntary. F ED. R. C RIM. P. 11(b)(1)(N); Bond, 414 F.3d at 544. Although he
reserved the right to assert ineffective assistance of counsel and/or prosecutorial
misconduct in a collateral action – matters as to which we express no opinion –
Castro waived the right to raise any challenge to his conviction or sentence on
direct appeal.
                                       III.
        Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel
is excused from further responsibilities herein, Castro’s motion for appointment
of new counsel is DENIED, and the APPEAL IS DISMISSED. See 5 TH C IR. R.
42.2.




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