   Case: 09-50456       Document: 00511133736          Page: 1    Date Filed: 06/07/2010




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

                                                 FILED
                                                                            June 7, 2010
                                     No. 09-50456
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

PEDRO LOPEZ-CASTILLO,
Also Known as Pedro Castillo Lopez, Also Known as Pedro Castillo-Lopez,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-270-1




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Pedro Lopez-Castillo appeals the sentence imposed following his guilty-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50456    Document: 00511133736 Page: 2       Date Filed: 06/07/2010
                                 No. 09-50456

plea conviction. For the first time on appeal, he contends that the district court
erred in not awarding him a U.S.S.G. § 5C1.2 safety-valve reduction and in fail-
ing to impose a sentence below the statutory minimum. As the government
contends, however, the appeal is barred by the waiver-of-appeal provision in the
plea agreement, which was knowing, voluntary, and enforceable. See United
States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo,
18 F.3d 290, 292-93 (5th Cir. 1994); F ED. R. C RIM. P. 11(b)(1)(N).
      Lopez-Castillo nonetheless argues that the appellate-waiver provision is
unenforceable, because the government breached the plea agreement by not re-
questing a safety-valve reduction. That argument fails, because the government
was under no obligation to request such reduction and because Lopez-Castillo
did not qualify for it. Likewise, his assertion that the government breached the
terms of the agreement by not filing a motion for reduction of sentence under
Federal Rule of Criminal Procedure 35 is unavailing, because the government
did not bargain away its discretion to file for a sentencing reduction, and the
agreement did not otherwise obligate the government to file such a motion. See
Wade v. United States, 504 U.S. 181, 185 (1992); United States v. Sneed, 63 F.3d
381, 388 n.6 (5th Cir. 1995). Finally, Lopez-Castillo’s alternative argumentSS
that the waiver, even if enforceable, does not apply, because his claim involves
an allegation of prosecutorial misconduct that is excluded under the waiverSSis
without merit.
      AFFIRMED.




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