     Case: 15-40503      Document: 00513656362         Page: 1    Date Filed: 08/29/2016




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

                                    No. 15-40503
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 29, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

GUILLERMO NINO-MATA,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-268-2




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Guillermo Nino-Mata pleaded guilty of conspiracy to possess with intent



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40503

to distribute methamphetamine. As part of the plea agreement, he and the
government stipulated, “The base offense level pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1 is 38 based on the possession with intent to dis-
tribute 15 kilograms or more of a mixture or substance containing a detectable
amount of methamphetamine or 1.5 kilograms or more of methamphetamine
(actual).”

      After rearraignment and before sentencing in March 2015, the threshold
for a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1) was raised from
“15 KG or more of Methamphetamine, or 1.5 KG or more of Methamphetamine
(actual), or 1.5 KG or more of ‘Ice’” to “45 KG or more of Methamphetamine, or
4.5 KG or more of Methamphetamine (actual), or 4.5 KG or more of ‘Ice.’”
U.S.S.G., App. C., Amend. 782. The district court determined that Nino-Mata’s
base offense level was 38 even after Amendment 782, because his offense
involved 0.44 grams of cocaine, 19.8 grams of methamphetamine, and
13.36 kilograms of “Ice.” The court sentenced Nino-Mata, within his guideline
range, to 262 months.

      Nino-Mata claims, for the first time on appeal, that the government
breached the plea agreement by disregarding the stipulated drug quantity. He
contends that, in light of Amendment 782, the stipulation must be interpreted
based on the parties’ intent and that such intent was to assess the base offense
level based on the stipulated quantity rather than the numerical level 38.
According to Nino-Mata, his base offense level should have been 36, the level
applicable, after Amendment 782, to a drug quantity of 15 kilograms of meth-
amphetamine or 1.5 kilograms of methamphetamine (actual).

      The government does not contend that the stipulation bound Nino-Mata
to the numerical base offense level of 38. Instead, it reasons that the inclusion
of the words “or more” in the stipulation shows that it was not intended to limit


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                                    No. 15-40503

the applicable drug quantity to 15 kilograms of methamphetamine or
1.5 kilograms of methamphetamine (actual). Nino-Mata responds that the
phrase “or more” is ambiguous under the circumstances and should be con-
strued against the government as the drafter of the plea agreement.

      Although the plea agreement contained an appeal waiver, the waiver
does not preclude the argument that the government breached the plea agree-
ment. See United States v. Purser, 747 F.3d 284, 289 & n.11 (5th Cir. 2014).
But because Nino-Mata did not preserve this issue in the district court, plain-
error review applies. See United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir.
2014).

      General principles of contract law apply to the interpretation of a plea
agreement. Id. at 413. Ambiguities are construed against the government as
the drafter. United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008); United
States v. Farias, 469 F.3d 393, 397 & n.4 (5th Cir. 2006). In determining
whether the government breached the agreement, we consider whether its con-
duct was “consistent with the defendant’s reasonable understanding of the
agreement.” Hinojosa, 749 F.3d at 413 (internal quotation marks and citation
omitted).

      Nino-Mata has not shown error, much less plain error. First, an ordinary
reading of the stipulation makes evident that it did not provide a limit on the
applicable quantity of methamphetamine or methamphetamine (actual). The
lack of a maximum amount was reasonable given that, at the time of the stip-
ulation, the range in the stipulation tracked the language of the range for the
highest base offense level available under § 2D1.1(c), level 38. See § 2D1.1(c)(1)
(2013).

      Second,    Nino-Mata     is    amiss   in    contending    that,    following



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                                  No. 15-40503

Amendment 782, the stipulation dictated a base offense level of 36.           The
amended drug-quantity range for a base offense level of 36 includes an upper
limit, in that the drug quantity must be less than 45 kilograms of metham-
phetamine, 4.5 kilograms of methamphetamine (actual), or 4.5 kilograms of
“Ice.” See § 2D1.1(c)(2). Therefore, the range for a base offense level of 36 after
Amendment 782 is incongruent with the drug-quantity range provided in the
stipulation, which did not contain an upper limit. The stipulation thus did not
dictate a base offense level of 36 following Amendment 782, and the govern-
ment did not violate the stipulation by failing to recommend a base offense
level of 36.

      Nino-Mata also contends that his trial lawyer provided ineffective
assistance of counsel (“IAC”) by failing to enforce the government’s promise to
recommend the drug quantity contained in the stipulation. Nino-Mata did not
raise this claim in the district court. Although we generally do not resolve a
claim of IAC on direct appeal when it was not raised in the district court, we
do so here because the record is adequately developed to allow a fair evaluation
of the merits. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).

      To prevail on a claim of IAC, the defendant must show that “counsel’s
performance was deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the
stipulation did not bind the government to a maximum quantity of metham-
phetamine or methamphetamine (actual), it would have been futile for counsel
to argue that the government had disregarded the infringement of the stipu-
lated quantity of those drugs. Thus, counsel did not perform deficiently by not
raising such an argument. See Roberts v. Thaler, 681 F.3d 597, 611 (5th Cir.
2012) (recognizing that counsel is not required to make futile motions or
objections).


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      Nino-Mata’s appointed counsel on appeal, Christian Souza, has moved
for leave to withdraw and for the appointment of substitute counsel. The
motion for the appointment of new counsel is DENIED. Souza’s motion to
withdraw is premature and is HELD IN ABEYANCE. Within 20 days of the
dismissal of this appeal, Souza should submit documentation to this court
showing that he has fulfilled his obligations to Nino-Mata as set forth in Sec-
tion 6 of the Fifth Circuit Plan under the Criminal Justice Act.

      The judgment is AFFIRMED.




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