     Case: 17-41150      Document: 00514702796         Page: 1    Date Filed: 10/30/2018




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

                                                                                FILED
                                    No. 17-41150                         October 30, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS MANUEL SORIA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:13-CR-281-11


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Luis Manuel Soria appeals his sentence of 360 months of imprisonment
for conspiracy to possess with intent to distribute methamphetamine in
violation of 21 U.S.C. § 846. He argues that the Government breached the plea
agreement by failing to move for a downward departure pursuant to U.S.S.G.
§ 5K1.1, and he also argues that the district court assessed a substantively
unreasonable sentence. The Government moves to dismiss the appeal based


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-41150

on the waiver in the plea agreement of Soria’s right to appeal his sentence.
Soria argues that the waiver is unenforceable because of the alleged breach of
the plea agreement. He also argues, for the first time in his opposition to the
Government’s motion to dismiss, that the plea agreement is void for lack of
consideration and that the § 5K1.1 provision in the plea agreement is contrary
to law. We will not consider these issues raised for the first time in what is
essentially his reply brief. See United States v. Brown, 305 F.3d 304, 307 n.4
(5th Cir. 2002).
      Although “an alleged breach of a plea agreement may be raised despite
a waiver provision,” United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010),
our review of the record shows that the Government did not breach the
agreement which gave the Government sole discretion to decide whether to file
a § 5K1.1 motion. See United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th
Cir.1993); see also Puckett v. United States, 556 U.S. 129, 133-38 (2009); United
States v. Kirkland, 851 F.3d 499, 502-03 (5th Cir. 2017) (applying plain error
review to a claim of breach first raised on appeal).
      Soria concedes that the Government chose not to move for a downward
departure because he absconded and failed to appear for his originally
scheduled sentencing hearing. This is not an unconstitutional motive, and it
is rationally related to a legitimate government end. See Wade v. United
States, 504 U.S. 181, 185 (1992); United States v. Aderholt, 87 F.3d 740, 742
(5th Cir.1996). The record shows that Soria knew that he had a right to appeal
his sentence and was giving up that right. FED. R. CRIM. P. 11(b)(1)(N). Soria’s
argument that the district court assessed a substantively unreasonable
sentence is waived by the waiver of appeal. See United States v. Sanchez
Guerrero, 546 F.3d 328, 335 (5th Cir. 2008).




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                                No. 17-41150

      Accordingly, the Government’s motion to dismiss the appeal is
GRANTED, and the appeal is DISMISSED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.




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