Opinion
No. 09-50456 Summary Calendar.
June 7, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Jacques Lawrence De La Mota, Delamota Company Ltd., Del Rio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 2:08-CR-270-1.
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
Pedro Lopez-Castillo appeals the sentence imposed following his guilty-plea conviction. For the first time on appeal, he contends that the district court erred in not awarding him a U.S.S.G. § 5C1.2 safety-valve reduction and in failing to impose a sentence below the statutory minimum. As the government contends, however, the appeal is barred by the waiver-of-appeal provision in the plea agreement, which was knowing, voluntary, and enforceable. See United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994); FED.R.CRIM.P. 11(b)(1)(N).
Lopez-Castillo nonetheless argues that the appellate-waiver provision is unenforceable, because the government breached the plea agreement by not requesting a safety-valve reduction. That argument fails, because the government was under no obligation to request such reduction and because Lopez-Castillo did not qualify for it. Likewise, his assertion that the government breached the terms of the agreement by not filing a motion for reduction of sentence under Federal Rule of Criminal Procedure 35 is unavailing, because the government did not bargain away its discretion to file for a sentencing reduction, and the agreement did not otherwise obligate the government to file such a motion. See Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Sneed, 63 F.3d 381, 388 n. 6 (5th Cir. 1995). Finally, Lopez-Castillo's alternative argument — that the waiver, even if enforceable, does not apply, because his claim involves an allegation of prosecutorial misconduct that is excluded under the waiver — is without merit.
AFFIRMED.