United States v. Velez, 23-50882

Carlos Fabian Velez pled guilty to distribution of child pornography in federal court.
His plea agreement included a waiver of appeal rights, except for claims of ineffective assistance and prosecutorial misconduct.
At sentencing, the prosecutor revealed her own childhood abuse in response to Velez’s explanation of his conduct, which Velez claimed breached the plea and constituted misconduct.
The district court imposed a sentence above the guideline range: 210 months in prison, 30 years’ supervised release.
On appeal, Velez argued breach of agreement, misconduct, and due process violations, while the government invoked the appeal waiver.
The Fifth Circuit reviewed for plain error and also determined whether the appeal waiver applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Breach of plea agreement	No breach occurred	Prosecutor’s statement was a breach	No breach, no clear error
Prosecutorial misconduct	None present	Prosecutor’s personal comments = misconduct	No misconduct, no impact
Due process violation at sentencing	Waiver bars argument	Prosecutor’s comments tainted sentence	Claims barred by waiver
Applicability of appeal waiver	Waiver is clear and valid	Breach negates the waiver	Waiver applies, claims dismissed

United States v. Cluff, 857 F.3d 292 (5th Cir. 2017) (appeal waiver does not bar claim that government breached plea agreement)
Puckett v. United States, 556 U.S. 129 (2009) (plain error review standard for plea agreement breaches)
United States v. Kelly, 915 F.3d 344 (5th Cir. 2019) (framework for determining scope and validity of appeal waivers)
United States v. Bolton, 908 F.3d 75 (5th Cir. 2018) (standards for prosecutorial misconduct affecting sentencing)