     Case: 16-51141      Document: 00514209624         Page: 1    Date Filed: 10/25/2017




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

                                    No. 16-51141
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      October 25, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

MAGALY ALEMANIA MALAGON SANDOYA,
 Also Known as Maggie, Also Known as Magi,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                               No. 3:15-CR-1603-2




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

       Magaly Malagon Sandoya appeals her conviction of, and sentence for,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51141

conspiracy to encourage and induce aliens to come to the United States for
financial gain, causing serious bodily injury. In a plea agreement, she agreed
to waive her right to appeal the sentence “on any ground, including but not
limited to any challenges to the determination of any period of confinement,
monetary penalty or obligation, term of supervision and conditions thereof, and
including any appeal right conferred by 18 U.S.C. § 3742.” With the exception
of claims of ineffective assistance of counsel and prosecutorial misconduct of a
constitutional dimension, she also waived the right to challenge the sentence
in a postconviction proceeding.

      Malagon Sandoya contends that there was not an adequate factual basis
for her conviction because the stipulated facts did not establish that she per-
sonally caused serious injury or placed another person’s life in jeopardy during
and in relation to the offense, which she contends is required under a plain
reading of 8 U.S.C. § 1324(a)(1)(B)(iii). As Malagon Sandoya and the govern-
ment say, Malagon Sandoya did not waive this issue by waiving the right to
appeal her sentence. See United States v. Hildenbrand, 527 F.3d 466, 474 (5th
Cir. 2008); United States v. Baymon, 312 F.3d 725, 727−28 (5th Cir. 2002).
Because Malagon Sandoya did not raise this issue in the district court, it is
reviewed only for plain error. See United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012); United States v. Garcia-Paulin, 627 F.3d 127, 131 (5th Cir.
2010).

      We have already rejected this argument on plain-error review.           See
United States v. Alvarado-Casas, 715 F.3d 945, 952-53 (5th Cir. 2013). Accord-
ingly, Malagon Sandoya has not demonstrated that the district court commit-
ted plain error in accepting her plea.

      Malagon Sandoya claims that the district court erred in overruling her
objections to increases in her sentence under U.S.S.G. § 2L1.1(b)(7)(B) based


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                                No. 16-51141

on her causing serious bodily injury to another person, under U.S.S.G. § 3A1.1
based on the victim’s vulnerability, and under U.S.S.G. § 3B1.1(a) based on her
role as an organizer or leader. The government correctly maintains, however,
that those issues are barred by Malagon Sandoya’s knowing and voluntary
appeal waiver, and they do not fall within any of the exceptions to the waiver.
See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v.
McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005). Accordingly, Malagon San-
doya’s challenges to the sentence are dismissed.

      The judgment of conviction and sentence is AFFIRMED in part, and the
appeal is DISMISSED in part on account of the waiver.




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