United States v. Ibarra
145 F. App'x 493
October 5, 2005 · Docket 04-41300
Headnotes
Generated summaries- Headnote 1
The court found the transcript of Ibarra’s plea hearing showed the waiver was made knowingly and voluntarily, making the clause binding on the defendant.
- Headnote 2
Although Ibarra never contested the waiver, the Fifth Circuit exercised discretion to review the waiver sua sponte.
- Headnote 3
The court held that Ibarra’s Booker Sixth‑Amendment claim and his § 3B1.1 enhancement challenge do not fall within the two enumerated exceptions.
- Headnote 4
The Fifth Circuit noted that a Booker violation does not constitute a sentence in excess of the statutory maximum, placing the claim outside the waiver’s scope.
- Headnote 5
The opinion relied on precedent that a § 3B1.1 enhancement does not constitute an upward departure, so the challenge falls outside the waiver’s two exceptions.
- Headnote 6
The Fifth Circuit affirmed the district court’s dismissal because Ibarra raised no viable argument that the waiver was invalid or inapplicable.
- Headnote 7
The opinion ordered counsel to file a show‑cause response within 30 days, noting no prior hearing on the waiver was required before imposing sanctions.
- Headnote 8
The court relied on Rule 46(c) as the authority to impose sanctions on counsel who continued an appeal barred by a valid waiver.
- Headnote 9
The court found the transcript of Ibarra’s plea hearing demonstrated a knowing, voluntary waiver, and therefore the waiver is binding under Fifth Circuit precedent.
- Headnote 10
The waiver expressly reserved review only for statutory‑maximum errors or upward departures; the court therefore held that challenges outside those categories are precluded.
- Headnote 11
The court noted that violations of Booker do not constitute a sentence exceeding the statutory maximum nor an upward departure from the Guidelines.
- Headnote 12
The court relied on precedent holding that a § 3B1.1 enhancement does not constitute an upward departure from the Sentencing Guidelines.
- Headnote 13
The court found Ibarra raised no meritorious argument and therefore dismissed the appeal as frivolous under Fifth Circuit Rule 42.2 and Howard v. King.
- Headnote 14
The court ordered counsel to show cause for sanctions, citing the Federal Rules of Appellate Procedure and noting no separate hearing on the waiver was required.
- Headnote 15
The court examined the plea‑hearing transcript and concluded Ibarra’s waiver satisfied the knowing‑and‑voluntary standard, so the waiver was deemed binding.
- Headnote 16
The court held that Ibarra’s waiver expressly barred his Sixth‑Amendment Booker claim and his challenge to the leader‑organizer enhancement because neither fit the two narrowly‑drawn exceptions.
- Headnote 17
Because Ibarra’s appeal raised only issues barred by his waiver and he offered no viable argument that the waiver was invalid, the court dismissed the appeal as frivolous.
- Headnote 18
The court issued an order directing Ibarra’s counsel to show cause within thirty days, relying on Fed. R. App. P. 46(c), and did not require a separate hearing on the waiver before imposing potential sanctions.
- Headnote 19
The Fifth Circuit exercised discretion to review Ibarra’s waiver sua sponte, noting that the court may assess the waiver’s enforceability without a request from the parties.
Opinion
Jose Ibarra appeals the sentence imposed following his guilty-plea conviction for possession with intent to distribute more than 500 grams of cocaine. Ibarra argues generally that his sentence violates the Sixth Amendment rule announced in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and also challenges the imposition of an enhancement based on his role as a leader or organizer pursuant to U.S.S.G. § 3B1.1, apparently both under Booker and on grounds of factual sufficiency.
As the Government correctly argues, Ibarra signed a written plea agreement in which he expressly waived his right to appeal his sentence, reserving the right to appeal only a sentence imposed above the statutory maximum or an upward departure from the Sentencing Guidelines. Although Ibarra failed to address the validity and scope of the waiver, we exercise our discretion to examine the waiver sua sponte. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir.2001). The transcript of the guilty plea hearing demonstrates that Ibarra’s appeal waiver was both knowing and voluntary and is, therefore, enforceable. See United States v. Baymon, 312 F.3d 725, 729 (5th Cir.2002).
Further, the waiver plainly bars Ibarra’s appeal. Neither Ibarra’s Booker challenge nor his challenge to the sufficiency of the evidence supporting the § 3B1.1 enhancement falls within the scope of the two exceptions to the waiver. See United States v. Bond, 414 F.3d 542, 545-46 (5th Cir.2005) (sentence imposed in violation of Booker rule does not constitute sentence in excess of statutory maximum); United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir.2005) (sentence imposed in violation of Booker rule does not constitute upward departure); United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir.1999) (a § 3B1.1 enhancement is not an upward departure).
As Ibarra’s appeal waiver clearly precludes this appeal, and as Ibarra failed to raise any meritorious argument that the waiver was invalid or otherwise inapplicable, we DISMISS the appeal as frivolous. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983).
In light of the foregoing, we hereby ORDER Ibarra’s counsel, Philip T. Cowen, to show cause why this court should not impose sanctions or otherwise discipline him for pursuing the appeal in light of his client’s clear and unambiguous appeal waiver and for failing to address the waiver in either the initial or reply brief. See Gaitan, 171 F.3d at 223; Fed. R.App. P. 46(c). Cowen shall have 30 days from the date of this opinion to file a response.
APPEAL DISMISSED AS FRIVOLOUS; COUNSEL ORDERED TO SHOW CAUSE WITHIN 30 DAYS WHY SANCTIONS SHOULD NOT BE IMPOSED.
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.