     Case: 14-50852      Document: 00513052865         Page: 1    Date Filed: 05/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50852
                                  Summary Calendar
                                                                        United States Court of Appeals
                                                                                  Fifth Circuit

                                                                               FILED
                                                                            May 22, 2015
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SAMUEL ALFONSO ELIAS-LUJAN,

                                                 Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                            USDC No. 4:14-CR-159-4


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Pursuant to a plea agreement, Samuel Alfonso Elias-Lujan (Elias)
pleaded guilty to aiding and abetting the possession with intent to distribute
marijuana and was sentenced to 60 months in prison and a five-year term of
supervised release. He now appeals, arguing that his plea agreement was
breached due to misleading language in the plea agreement regarding the
safety-valve reduction and, as a result, the appellate waiver is unenforceable.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50852     Document: 00513052865     Page: 2   Date Filed: 05/22/2015


                                  No. 14-50852

      The signed plea agreement and rearraignment transcript show that
Elias freely and knowingly waived his appellate rights. See United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Elias’s claim that his plea agreement
was breached survives the waiver. See United States v. Keresztury, 293 F.3d
750, 755-57 (5th Cir. 2002). Nevertheless, this argument, which is reviewed
for plain error only, is unavailing because the plea agreement clearly states
that Elias must satisfy U.S.S.G. § 5C1.2(a)(1)-(4) to be considered for the safety
valve reduction and the reduction was denied because Elias did not qualify for
it due to his criminal history. See United States v. Branam, 231 F.3d 931, 933
(5th Cir. 2000).
      To the extent that Elias argues that the prosecutor committed
misconduct by presenting the plea agreement to him even though the
prosecutor knew that Elias would not qualify for the safety-valve reduction,
Elias cannot show plain error because he has not shown that the prosecutor
acted improperly or took action that rendered the proceedings unfair. See
Smith v. Phillips, 455 U.S. 209, 219 (1982); Puckett v. United States, 556 U.S.
129, 135 (2009).     Finally, to the extent that Elias argues that the plea
agreement or appeal waiver is invalid because the agreement lacked
consideration, he cannot establish that the district court plainly erred in
accepting the agreement as this court has never expressly held that
consideration is required to support a valid plea bargain. See United States v.
Smallwood, 920 F.2d 1231, 1239-40 (5th Cir. 1991); United States v. Adams,
369 F. App’x 621 (5th Cir. 2010). The judgment of the district court is therefore
AFFIRMED.




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