     Case: 18-41003      Document: 00515070093         Page: 1    Date Filed: 08/09/2019




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

                                                                               FILED
                                    No. 18-41003                          August 9, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSUE OSVALDO SOLIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:18-CR-100-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Josue Osvaldo Solis appeals the 97-month sentence imposed following
his guilty plea conviction for conspiracy to transport an undocumented alien
within the United States. He contends that the district court erred in imposing
an offense level enhancement pursuant to U.S.S.G. § 2L1.1(b)(7).                               The
Government moves to dismiss the appeal based on the waiver in Solis’s plea
agreement of his right to appeal his conviction and sentence except on the basis


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-41003    Document: 00515070093      Page: 2   Date Filed: 08/09/2019


                                 No. 18-41003

of ineffective assistance of counsel.       Solis responds that he can appeal
notwithstanding the waiver because the Government breached the plea
agreement. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002)
(citing United States v. Keresztury, 293 F.3d 750, 755 (5th Cir. 2002)). We
review this unpreserved claim of breach of the plea agreement for plain error.
United States v. Casillas, 853 F.3d 215, 217 (5th Cir. 2017).
      In the plea agreement in this case, the Government (1) promised to move
for the additional one-level reduction under U.S.S.G. § 3E1.1(b) if the district
court determined that Solis qualified for the two-level § 3E1.1(a) reduction for
acceptance of responsibility and his offense level exceeded the relevant
threshold and (2) reserved the right to present facts and argument relevant to
sentencing.    In light of the plain language of the agreement, we are not
persuaded by Solis’s argument that he reasonably understood it to include an
additional promise that the Government would refrain from advocating
against his qualification for the two-level § 3E1.1(a) reduction. See Casillas,
853 F.3d at 217. Accordingly, the Government’s presentation of evidence and
argument that Solis did not qualify for a § 3E1.1(a) reduction because he
assaulted another prisoner was consistent with a reasonable understanding of
the plea agreement and, therefore, not a breach, let alone a clear or obvious
one. See id.
      Furthermore, the record confirms that the appeal waiver was knowing
and voluntary and that it applies to the sentencing issue Solis attempts to raise
on appeal. See United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011).
Accordingly, the Government’s motion to dismiss the appeal is GRANTED.
      APPEAL DISMISSED.




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