     Case: 17-41283      Document: 00514906244         Page: 1    Date Filed: 04/08/2019




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


                                    No. 17-41283
                                                                                  FILED
                                                                               April 8, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

FABIAN PAREDES ALVAREZ, also known as Fabian Hernandez Alvarez,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CR-73-1


Before OWEN, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Fabian Paredes Alvarez appeals his conviction for conspiracy to possess
with intent to distribute 500 grams or more of a substance containing a
detectable amount of methamphetamine under 21 U.S.C. §§ 841 and 846. He
contends that his trial counsel was ineffective for negotiating and advising him
to accept a plea agreement that included a waiver of his right to appeal
contested sentencing enhancements; that the district court erred by applying


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-41283     Document: 00514906244     Page: 2   Date Filed: 04/08/2019


                                  No. 17-41283

those enhancements; and that factual findings by the court at sentencing
violated the Fifth and Sixth Amendments under Apprendi v. New Jersey,
530 U.S. 466 (2000), and its progeny. The Government has moved to dismiss
the ineffective-assistance-of-counsel claim as premature and the sentencing
claims as barred by the appeal waiver.
      Although trial counsel indicated to the district court that Paredes
Alvarez wished to challenge counsel’s effectiveness on direct appeal, the merits
of the claim were not presented to the district court for resolution. In addition,
“the record is undeveloped as to trial counsel’s conduct and motivations” in
negotiating the terms of the appeal waiver and advising Paredes Alvarez to
accept it. United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (internal
quotation marks omitted). Accordingly, we will dismiss the claim without
prejudice to Paredes Alvarez’s right to pursue it in a proceeding under 28
U.S.C. § 2255. See id.
      With respect to the Government’s assertion that the remaining issues
are barred by the appeal waiver, the record reflects that Paredes Alvarez knew
he had the right to appeal and that he was voluntarily waiving that right by
entering the plea agreement. The broad language of the waiver applies to his
guidelines-application and Apprendi-based challenges, as Paredes Alvarez
makes no argument that he was sentenced above the maximum sentence
authorized by § 841 for his offense. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing
a maximum term of life in prison); United States v. Bond, 414 F.3d 542, 545–
46 (5th Cir. 2005) (finding an Apprendi-based challenge barred by a similar
appellate waiver notwithstanding the exception for sentences above the
statutory maximum).      Therefore, the sentencing claims are barred by the
appellate waiver and will be dismissed. See Bond, 414 F.3d at 544–46 & n.3.




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                                No. 17-41283

      IT IS ORDERED that the Government’s motion for summary dismissal
is GRANTED and that the appeal is DISMISSED without prejudice to Paredes
Alvarez’s right to bring any claim of ineffective assistance of counsel in a
proceeding under § 2255.      The Government’s alternative motion for an
extension of time to file an appellee’s brief is DENIED as moot.




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