USA v. Julio Cardenas, No. 12-50326 (5th Cir. 2013)

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Case: 12-50326 Document: 00512285936 Page: 1 Date Filed: 06/25/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50326 Summary Calendar June 25, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. JULIO CARDENAS, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-151-1 Before BARKSDALE, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* Pursuant to his guilty-plea conviction for conspiracy to possess, with intent to distribute, cocaine, Julio Cardenas received a within-Guidelines sentence of 204 months imprisonment. Cardenas written plea agreement contained an appeal waiver. One of the two exceptions was for an ineffective-assistance-ofcounsel claim. Cardenas contends his plea was unknowing because the district court violated Federal Rule of Criminal Procedure 11(b)(1)(M) when it failed to explain * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50326 Document: 00512285936 Page: 2 Date Filed: 06/25/2013 No. 12-50326 the concept of relevant conduct. This contention is permitted despite the appeal waiver, because such a waiver does not prevent defendant from contending on appeal that his plea agreement, including the waiver itself, was not entered into knowingly. See United States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011) (allowing unknowing-plea challenge despite existence of appeal waiver). Because Cardenas did not present his unknowing-plea contention in district court, review is only for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). For reversible plain error, Cardenas must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). To determine whether the claimed violation of Rule 11 affected Cardenas substantial rights, our court considers whether there is a reasonable probability he would not have pleaded guilty but for the error . United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). The district court substantially complied with Rule 11. In particular, it explained to Cardenas that he faced a sentence which included: up to 20 years imprisonment; a fine of up to $1 million; three years to life supervised release; and a special assessment of $100. See FED. R. CRIM. P. 11(b)(1)(H)-(L). Moreover, the court explained that it was obligated to: calculate the advisory Guidelines sentencing range; consider that range and other sentencing factors under 18 U.S.C. § 3553(a); and consider possible departures under the Guidelines. See FED. R. CRIM. P. 11(b)(1)(M). Because Cardenas was aware of the maximum sentence he faced, his alleged mistaken belief that his sentence would not be enhanced based on his relevant conduct did not render his plea involuntary. See United States v. Jones, 905 F.2d 867, 868-69 (5th Cir. 1990) (where defendant understands maximum sentence, he is fully aware of his plea s consequences (internal quotation marks and citation omitted)). To the extent Cardenas contends he is entitled to relief because he lacked close assistance of counsel and/or received ineffective assistance of counsel, he fails to adequately brief those contentions. He cites to neither the record nor 2 Case: 12-50326 Document: 00512285936 Page: 3 Date Filed: 06/25/2013 No. 12-50326 legal authorities to support them; therefore, they are abandoned. E.g., Davila v. United States, 713 F.3d 248, 261 (5th Cir. 2013); FED. R. APP. P. 28(a)(9). In the alternative, the record is developed insufficiently to allow consideration of such contentions. They generally cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations . United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). AFFIRMED. 3

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