UNITED STATES v. NUNEZ BELEMONTES (2019)

Jose Christian Nunez-Belemontes appeals the 262-month, within-guidelines sentence he received after he pleaded guilty, pursuant to a plea agreement, to conspiring to possess with intent to distribute more than 500 grams of cocaine hydrochloride. He argues that the district court erred in assessing a two-level enhancement for maintaining a drug premises, pursuant to U.S.S.G. § 2D.1.(b)(12), and a four-level enhancement for his role as an organizer or leader of criminal activity, pursuant to U.S.S.G. § 3B1.1(a). The Government moves to dismiss the appeal or, alternatively, for summary affirmance based on the appeal waiver contained in Nunez-Belemontes’s plea agreement. Nunez-Belemontes has filed a pro se motion to relieve counsel and to proceed pro se.

We review de novo whether an appeal waiver bars an appeal. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). The record shows that Nunez-Belemontes knew he had the right to appeal and was relinquishing that right by entering the plea agreement; thus, the waiver was knowing and voluntary. See id. at 754-55. Moreover, the waiver broadly covers all challenges to the sentence and accordingly applies here. See id. at 754. Finally, based on our review of the record, we are satisfied that the Government has not breached the plea agreement. See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).

Accordingly, we GRANT the Government’s motion to dismiss based on the appeal waiver and DENY the alternative motion for summary affirmance. Nunez-Belemontes’s motion to relieve counsel and to proceed pro se is DENIED as untimely. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998); United States v. Rincon-Rincon, 668 F. App'x 606, 607 (5th Cir. 2016).

APPEAL DISMISSED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.