United Statesv.Lozano-Alcorta

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITFeb 19, 2015
No. 14-40357 (5th Cir. 2015)
No. 14-40357593 Fed. Appx. 411

No. 14-40357

02-19-2015

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAIME RAMON GARCIA LOZANO-ALCORTA, Defendant-Appellant


Summary Calendar Appeal from the United States District Court for the Southern District of Texas
USDC No. 5:12-CR-1092
Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM:

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Pursuant to a plea agreement, Jaime Ramon Garcia Lozano-Alcorta pleaded guilty to one count of possession with intent to distribute five kilograms or more of cocaine. As part of the plea agreement, Lozano-Alcorta agreed to waive his "right to appeal the conviction, the sentence imposed or the manner in which the sentence was determined." The district court sentenced him to 80 months of imprisonment and five years of supervised release.

Lozano-Alcorta has filed a timely notice of appeal and contends that the district court erred regarding his sentence by refusing to grant a downward departure based on prospective amendments to the drug quantity tables in U.S.S.G. § 2D1.1. According to Lozano-Alcorta, the appeal waiver in his plea agreement is invalid because he could not have knowingly waived the right to appeal a sentence that had not yet been imposed. The Government seeks dismissal of the appeal based on the appeal waiver.

The validity of an appeal waiver is reviewed de novo. United States v. Rodriguez-Estrada, 741 F.3d 648, 650 (5th Cir. 2014). For a defendant's waiver of his right to appeal to be knowing and voluntary, the "defendant must know that he had a right to appeal his sentence and that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). Lozano-Alcorta's challenge to his appeal waiver is unavailing. See United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992). The waiver is enforceable and encompasses Lozano-Alcorta's challenge to his sentence.

Accordingly, the appeal is DISMISSED.