     Case: 18-40793      Document: 00515070651         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. 18-40793                           August 9, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MATTHEW JOSEPH LUCIO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:18-CR-167-1


Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Matthew Joseph Lucio pleaded guilty, pursuant to a plea agreement, to
two counts of production of child pornography and two counts of enticing a
minor to engage in sexual activity. The district court sentenced him within the
advisory guidelines range to 30 years of imprisonment on the child
pornography charges and life imprisonment on the enticement charges, all
such terms to run concurrently.             Lucio now challenges his guilty plea


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40793    Document: 00515070651     Page: 2   Date Filed: 08/09/2019


                                 No. 18-40793

convictions on two related grounds, to wit: (1) his guilty plea was not made
knowingly, voluntarily, and intelligently and thus he was deprived of due
process because his plea agreement lacked consideration; and (2) the district
court violated Federal Rule of Criminal Procedure 11(b)(2) by accepting his
involuntary guilty plea.
      The Government urges this court to dismiss the appeal on the basis that
Lucio waived the right to appeal his convictions and sentences as part of his
plea agreement. However, because we conclude that Lucio’s challenges to his
convictions fail on the merits, we pretermit the question whether the waiver
bars the instant appeal. See United States v. Story, 439 F.3d 226, 230–31 (5th
Cir. 2006).
      The record of Lucio’s rearraignment reflects that he acknowledged,
under oath, that he understood the consequences of his plea—including the
maximum sentence that could be imposed—and that he was pleading
voluntarily, that no one had threatened him or forced him to plead guilty, and
that no one had made any promises about his case other than what was
provided in the written plea agreement. Lucio’s “solemn declarations in open
court . . . carry a strong presumption of verity.” United States v. Palmer, 456
F.3d 484, 491 (5th Cir. 2006) (internal quotation marks, brackets, and citations
omitted). In addition, 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 (5th Cir. 1991). Moreover, Lucio’s arguments discount the
Government’s promises in the plea agreement to recommend a within-
guidelines sentence; to move for the additional one-level reduction for
acceptance of responsibility under the Guidelines; and to file a motion urging
the court to consider a reduction of Lucio’s sentence if the Government
concluded that he had provided substantial assistance in the investigation or



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                                 No. 18-40793

prosecution of others.    As those promises bound the Government to do
something it was not otherwise required to do and offered Lucio the chance of
a reduced sentence, Lucio has not shown that the Government’s promises were
illusory or that his bargain lacked consideration.        His arguments do not
establish any error or due process violation concerning his plea of guilty. See
United States v. Washington, 480 F.3d 309, 315–16 (5th Cir. 2007).
      Nor has Lucio shown that the district court violated Rule 11(b)(2) by
accepting an involuntary guilty plea. As Lucio concedes, because this issue is
raised for the first time on appeal, our review is for plain error. See United
States v. Vonn, 535 U.S. 55, 58–59 (2002). Here, in compliance with Rule 11,
the magistrate judge addressed Lucio personally in open court and specifically
asked him about the voluntariness of his plea. See FED. R. CRIM. P. 11(b)(2).
Lucio cites no authority in support of his contention that district courts have a
duty to ensure that any plea agreement in fact has a bargained-for quid pro
quo, and nothing in the language of Rule 11(b)(2) requires same. See id. He
thus has not shown an error that is “clear or obvious, rather than subject to
reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009); see
also United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




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