United States v. Pena

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20509
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO PENA, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-142-35
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Armando Pena, Jr., appeals his sentence following his guilty-
plea conviction for conspiracy to possess with intent to distribute
marijuana, a violation of 21 U.S.C. §§ 846 and 841(b), and the
denial of his motion to withdraw his guilty plea. Pena was
sentenced to 360 months in prison and five years of supervised
release.

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1 See United States v. White, 307 F.3d 336, 343 (5th Cir.
2002).
2 740 F.2d 339, 343-44 (5th Cir. 1984).
3 See United States v. Bounds, 943 F.2d 541, 543 (5th Cir.
1991).
2
Pena’s plea agreement contained a provision by which he waived
his right to appeal his sentence and “the manner in which it was
determined.” The Government has filed a motion to dismiss the
appeal on the basis of this waiver.
Pena argues that the district court abused its discretion in
denying his motion to withdraw his guilty plea, apparently on the
grounds that there was a four-year delay in sentencing and that the
factual basis for the plea was insufficient. Although Pena waived
his right to appeal his sentence as part of his plea, such a waiver
is enforceable only if the plea agreement itself is valid.1 Pena
has not established that, in denying his motion to withdraw, the
district court abused its discretion; it is not clear that any of
the seven factors discussed in United States v. Carr2 supported the
withdrawal of his guilty plea.3
Pena’s contention that the factual basis offered by the
Government was insufficient to support his guilty plea is
meritless. That factual basis showed that there was an agreement
to possess marijuana with intent to distribute, that Pena knew of
the agreement, that he voluntarily participated in the agreement,

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4 See United States v. DeLeon, 247 F.3d 593, 596 (5th Cir.
2001).
5 See United States v. Melancon, 972 F.2d 566, 568 (5th Cir.
1992).
3
and that the agreement involved more than 1,000 kilograms of
marijuana.4
Pena’s remaining contentions regard the computation of his
sentence under the Sentencing Guidelines and various procedural
matters concerning sentencing. Pena does not suggest that the
waiver provision in the plea agreement was not knowing and
voluntary. Because Pena entered his plea knowingly and
voluntarily, and the factual basis supporting it is sufficient, the
waiver of appeal is sustained.5 Pena’s contentions regarding his
sentence and the manner in which it was determined are precluded by
the waiver, and we therefore do not consider those arguments.
The judgment of the district court is AFFIRMED. The
Government’s motion to dismiss is DENIED as unnecessary.

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