     Case: 11-50161     Document: 00511724656         Page: 1     Date Filed: 01/13/2012




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

                                                                            FILED
                                                                         January 13, 2012
                                     No. 11-50161
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

AQUILINO GUTIERREZ-GRESS, also known as Kilo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-3415-2


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Aquilino Gutierrez-Gress pleaded guilty pursuant
to a plea agreement to conspiracy to distribute and possess 100 kilograms or
more of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841 and
846. The district court imposed a within-guidelines sentence of 151 months of
imprisonment. As part of his plea agreement, Gutierrez-Gress waived his right
to appeal any aspect of his sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50161

      Gutierrez-Gress argues that his guilty plea is “null and void” because the
district court failed to accept formally the guilty plea that he entered pursuant
to the plea agreement. As Gutierrez-Gress did not raise this argument in the
district court, our review is for plain error. See Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009). To show plain error, Gutierrez-Gress must show a
forfeited error that is clear or obvious and that affects his substantial rights. Id.
If he makes such a showing, we have the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      The record supports that the district court failed to make an explicit
adjudication of guilt or acceptance of the plea agreement. However, Gutierrez-
Gress has not alleged that the district court’s omission affected his decision to
plead guilty, and the record does not support such a suggestion. The record
shows that Gutierrez-Gress was aware that he was entering a guilty plea
pursuant to a plea agreement and that he wanted the district court to accept his
plea under the bargained-for terms of the plea agreement. The record further
shows that the district court implicitly accepted Gutierrez-Gress’s guilty plea
and his plea agreement; the district court did not inform the parties that it
rejected the plea agreement, the district court entered a judgment of conviction
setting forth that Gutierrez-Gress had pleaded guilty and sentenced him in
connection with his guilty plea conviction, and Gutierrez-Gress received the
bargained-for benefits of the plea agreement. Thus, Gutierrez-Gress has not
shown that his substantial rights were affected by the district court’s failure to
accept expressly his guilty plea or his plea agreement. See id.; United States v.
Morales-Sosa, 191 F.3d 586-88 (5th Cir. 1999); United States v. Sanford, 429
F.3d 104, 107 n. 2 (5th Cir. 2005).
      Gutierrez-Gress additionally contends that the district court erred by not
determining conclusively whether he qualified for an enhancement pursuant to
U.S.S.G. § 3B1.1(b) for his role as a manager or supervisor. He suggests that the

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                                  No. 11-50161

enhancement was applied in error because he disputed his role as a manager or
supervisor, and the district court did not clearly find by a preponderance of the
evidence that he was subject to the enhancement.
      The government seeks the enforcement of the appeal waiver contained in
the plea agreement. Gutierrez-Gress does not address the validity of the appeal
waiver in his brief.
      We review de novo the issue whether an appeal waiver bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The record shows
that Gutierrez-Gress’s appeal waiver was knowing and voluntary. See United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005). Furthermore, under the plain language of the plea
agreement, the waiver applies to the circumstances at issue. Bond, 414 F.3d at
544. Thus, the appeal waiver is valid and should be enforced to bar Gutierrez-
Gress’s appeal of the instant issue. We caution counsel that pursuing an appeal
contrary to a valid waiver is a needless waste of judicial resources and will invite
sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).
      Finally, the judgment of conviction reflects that Gutierrez-Gress pleaded
guilty to count one of the superseding indictment and states that the offense of
conviction was “Conspiring to import a quantity of marijuana > 100 kilograms,”
in violation of 21 U.S.C. §§ 952, 960, and 963. However, the record reflects that
Gutierrez-Gress pleaded guilty to count three of the superseding indictment and
that the statutes of conviction were §§ 841 and 846. Accordingly, we instruct the
district court on remand to correct the judgment to reflect that Gutierrez-Gress
was convicted of count three of the indictment and to identify the appropriate
statutes of conviction. See FED. R. CRIM. P. 36.
      AFFIRMED; REMANDED FOR CORRECTION OF JUDGMENT




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