United States v. Jordan Bautista-Gunter

Feb 2, 2018
17-50084 Summary Calendar
Versions:

Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee

Juan Martinez-Salgado, Pro Se

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

The Federal Public Defender appointed to represent Juan Martinez-Salgado has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Martinez-Salgado has not filed a response. We have reviewed counsel‘s brief and the relevant portions of the record reflected therein. We concur with counsel‘s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel‘s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.

Joseph H. Gay, Jr., Assistant U.S. Attorney, Mark Randolph Stelmach, Esq., Assistant U.S. Attorney, U.S. Attorney‘s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee

Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender‘s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Jordan Jericho Bautista-Gunter appeals his guilty plea convictions for possession of a firearm by a prohibited person and carrying a weapon on an aircraft. He argues that the district court erred by denying his motion to withdraw his guilty plea because the Government breached its promise, contained in his plea agreement, that it would not oppose his receipt of a U.S.S.G. § 3E1.1 adjustment for acceptance of responsibility.

We need not decide whether the Government breached the plea agreement because it cured any breach by making sufficiently clear, both in its amended sentencing memorandum and during Bautista-Gunter‘s sentencing hearing, its intention to remain silent regarding whether Bautista-Gunter should receive the § 3E1.1 adjustment. See United States v. Purser, 747 F.3d 284, 293-94 (5th Cir. 2014). Although the Government referred during the sentencing hearing to the position expressed in its original sentencing memorandum, the Government‘s expressions of its intention to remain silent in accordance with the plea agreement were not “equivocal or half-hearted.” Id. at 293 n.44.

AFFIRMED.

Notes

*
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. 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.