United States v. Riojas

1 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that this opinion should not be published and is not precedent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
May 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20753
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO RIOJAS, also known as Ricardo Riojas-Sandoval,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-142-2
--------------------
Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
PER CURIAM:1
Ricardo Riojas (Riojas) pleaded guilty to conspiring to
launder money in violation of 18 U.S.C. §§ 1956(g) and (h) and
engaging in a continuing criminal enterprise in violation of 21
U.S.C. § 848 and was sentenced to a total term of life
imprisonment. He appeals the district court’s denial of his motion
to withdraw his guilty plea. He asserts that his plea was not
knowing or voluntary because it was based upon his former counsel’s

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erroneous advice that he was entering a plea that would result in
a 20-year prison term, not life imprisonment, and that the
Government was obligated to file a motion pursuant to U.S.S.G.
§ 5K1.1 in exchange for his complete and truthful debriefing.
Riojas received all the information to which he was entitled
under due process regarding his possible sentences, and any
erroneous advice of counsel to the contrary cannot render his plea
involuntary. See United States v. Brewster, 137 F.3d 853, 858 (5th
Cir. 1998); United States v. Badger, 925 F.2d 101, 104 (5th Cir.
1991). Moreover, Riojas does not rebut the Government’s assertion
that it did not file a motion for a downward departure on his
sentence under U.S.S.G. § 5K1.1 because he was not truthful during
his debriefings. The Government had the right to exercise complete
discretion whether to file such a motion. See United States v.
Garcia-Bonilla, 11 F.3d 45, 47 (5th Cir. 1993).
In addition, for the first time on appeal, Riojas alleges that
the Government negotiated his plea in bad faith by representing
that it would file a motion for downward departure of Riojas’s
sentence pursuant to U.S.S.G. § 5K1.1, when it did not intend to do
so. However, where, as here, the Government retains its discretion
to file a motion under U.S.S.G. § 5K1.1, absent an unconstitutional
motive, its decision not to file such a motion is not a breach of
the plea agreement. See id. Riojas does not allege any
unconstitutional motive on the part of the Government.
Consequently, Riojas has not shown plain error with respect to his

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2 FED. R. CRIM. P. 32(e) was amended effective December 1,
2002, and moved to FED. R. CRIM. P. 11(d). However, because the
district court accepted Riojas’s plea and plea agreement before
Riojas moved to withdraw his plea, the new and old versions of
the rule do not differ substantively as applied to this case.
See FED. R. CRIM. P. 32(e) (1994), FED. R. CRIM. P. 11(d)(2)(B)
(2002).
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claim that the Government breached his plea agreement by not filing
a motion under U.S.S.G. § 5K1.1. See United States v. Reeves, 255
F.3d 208, 210 (5th Cir. 2001).
Therefore, Riojas has not shown a “fair and just reason” why
he should be allowed to withdraw his plea. FED. R. CRIM. P. 32(e)
(2002).2 Under the totality of the circumstances, the district
court did not abuse its discretion in denying Riojas’s motion to
withdraw his guilty plea. See Brewster, 137 F.3d at 857-58.
Accordingly, the judgment of the district court is AFFIRMED.

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