     Case: 17-41075      Document: 00514589276         Page: 1    Date Filed: 08/07/2018




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

                                    No. 17-41075                          FILED
                                  Summary Calendar                   August 7, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELEASAR TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-125-3


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Eleasar Torres pleaded guilty pursuant to a written plea agreement to
conspiracy to possess with the intent to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 168 months
of imprisonment and five years of supervised release. Torres appeals, claiming
that there was an insufficient factual basis for his plea, that the Government
constructively amended his indictment, and that the district court erred in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41075

sentencing him based on a finding that he was accountable for 4.5 kilograms
of methamphetamine (actual).         The Government has moved to summarily
dismiss these claims as barred by Torres’s appeal waiver. Torres also raises
claims of ineffective assistance of counsel. The Government has moved for
summary affirmance of Torres’s ineffective assistance claims on the grounds
that they are not ripe for review.
      As part of his plea agreement, Torres waived his right to appeal his
conviction or sentence unless his sentence exceeded the statutory maximum
punishment, which it did not.        Torres’s arguments that the Government
amended his indictment and that the district court committed error at
sentencing are barred by the waiver-of-appeal provision in his plea agreement.
To the extent that Torres argues that his plea waiver was not knowing or
voluntary, he fails to rebut the record, which establishes that Torres knew that
he had the right to appeal and that he was voluntarily giving up that right by
entering the plea agreement. See United States v. Bond, 414 F.3d 542, 544
(5th Cir. 2005). Finally, although a valid appeal waiver does not bar a claim
on appeal that there was an insufficient factual basis for a plea, see United
States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008), Torres’s admitted
conduct satisfied the elements of the offense charged in the indictment, and
Torres’s claim that there was an insufficient factual basis for his plea has no
merit. Accordingly, because these claims are barred by the appeal waiver, the
Government’s motion for summary dismissal is GRANTED.
      Torres’s plea reserved his right to raise on direct appeal claims of
ineffective assistance of counsel. However, we do not reach the merits of
Torres’s ineffective assistance claims because the record is not sufficiently
developed to allow us to evaluate counsel’s actions. See United States v. Isgar,
739 F.3d 829, 841 (5th Cir. 2014). As such, Torres’s ineffective assistance of



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                                No. 17-41075

counsel claims are DISMISSED without prejudice to any right Torres may
have to raise those claims on collateral review. See id. Given that we have
disposed of all of Torres’s claims on appeal, no further briefing is necessary.
Accordingly, the Government’s additional motions for summary affirmance
and for an extension of time to file a brief are DENIED.
      APPEAL DISMISSED.




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