United States v. Cruz-Barcena

*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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50005
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL CRUZ-BARCENA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
USDC No. DR-99-CR-615-3
_________________________________________________________________
July 13, 2000
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Leonel Cruz-Barcena was arrested while driving a truck
carrying illegal aliens across the Texas border. He reached a plea
agreement with prosecutors that waived his right to appeal. At
sentencing, defense counsel moved for a three-level reduction under
the sentencing guidelines, alleging that the offense was committed
for reasons other than profit. The district court denied the
motion, but later made statements suggesting that the court

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believed appeal was still available. Neither side reminded the
district court of the plea agreement. Cruz-Barcena now appeals.
I
Border agents arrested Cruz-Barcena, an illegal alien, as he
was driving a pickup truck carrying 16 other illegal aliens. Two
of the aliens stated they were to pay $1,200 for their
transportation from Mexico to Fort Worth, Texas. The agents also
questioned Cruz-Barcena, who told them that he had arranged to
drive the smuggling vehicle rather than pay the smuggling fee.
The prosecutors and Cruz-Barcena negotiated a standard plea
agreement, which Cruz-Barcena signed on September 29, 1999. Cruz-
Barcena pled guilty to willful transportation of illegal aliens
under 8 U.S.C. § 1324(a)(1)(A)(ii) & (B)(I). As part of the
agreement, he specifically waived his right to appeal his sentence.
During the sentencing hearing on December 17, 1999, Cruz-
Barcena’s lawyer moved for a three-level sentence reduction under
U.S.S.G. § 2L1.1(b)(1), which provides for such a reduction when
the offense was committed for a reason other than profit. He
presented no evidence on this point, however. Though the district
court denied the motion, the judge did say, “I encourage the
defendant’s counsel to appeal so that this question may be
thoroughly thrashed out in the Fifth Circuit.” Neither party
reminded the judge about Cruz-Barcena’s waiver.

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The court then proceeded to allocution. At that point, Cruz-
Barcena asserted that he had believed he was going to need to pay
for being smuggled once he arrived in Fort Worth. Though Cruz-
Barcena was not subject to cross-examination on this testimony,
which contradicted his earlier statements to the agents, the
district court issued a finding of fact that Cruz-Barcena had not
had a profit motive in driving the truck.
Cruz-Barcena then filed an appeal.
II
A
The question before us is whether the statements by the
district court that suggested that Cruz-Barcena had a right to
appeal effectively voided the provision in the plea agreement
waiving his right to appeal, on grounds that the courtroom colloquy
misled Cruz-Barcena and thereby rendered the waiver uninformed. We
review whether such a waiver in a plea agreement is voluntary and
informed de novo. United States v. Melancon, 972 F.2d 566, 567
(5th Cir. 1992).
(B)
Melancon involved a situation analogous to the one before us:
a defendant who signed a plea agreement waiving his right to
appeal, but who then sought to appeal after the district court
misspoke at later proceedings suggesting that appeal was available.

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In that case, we held that these misstatements, made several months
after the signature of the plea agreement, could not render that
earlier agreement unknowing.
Like the defendant in Melancon, Cruz-Barcena signed the plea
agreement several months before the district court’s misstatement.
Thus, the district court’s mistake did not affect Cruz-Barcena’s
earlier decision to sign the plea agreement and to waive his right
to appeal. That waiver was therefore informed.
III
For the reasons stated herein, Cruz-Barcena’s appeal is
D I S M I S S E D.

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