Case: 13-51190      Document: 00512830507         Page: 1    Date Filed: 11/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-51190
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 3, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ROGELIO MACEDO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CR-164-5


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       The attorney appointed to represent Rogelio Macedo has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 

(1967), and United States v. Flores, 

(5th Cir. 2011).
Macedo has filed a response. We have reviewed counsel’s brief and the relevant
portions of the record reflected therein, as well as Macedo’s response.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 13-51190

      The thrust of Macedo’s response is that the Government breached the
plea agreement by “support[ing] information inconsistent with the plea
agreement.” According to Macedo, he
      entered into an agreement which stipulated to a particular set of
      facts that stated that Macedo was engaged in a conspiracy. And
      that [he] was involved in a large methamphetamine organization.
      Although there       is mention of large quantities of
      methamphetamines the factual basis only reveals that two people
      drove cars containing five kilograms of methamphetamines.
Specifically, Macedo avers that the Government breached the terms of the
agreement “when it introduced evidence through the presentence report that
attributed a larger amount of methamphetamine contrary to that stipulated in
the plea agreement.” In this regard, he contends that the plea agreement only
stipulated to 10 kilograms of methamphetamine, whereas the PSR
recommended that 11,670.82 grams of methamphetamine mixture could be
attributed to him, in addition to 3,661.05 grams of methamphetamine actual.

      Macdeo’s breach argument lacks merit. As an initial matter, there is no
provision in the plea agreement stipulating that Macedo will be sentenced
based on a specified quantity of drugs. Indeed, under the agreement, the
Government explicitly reserved the right to “inform the U.S. Probation Office
and the Court of all information relevant to determining sentence.” Moreover,
there is no indication in the record that the Government actually informed the
court of additional drug quantities. Finally, contrary to Macedo’s contentions,
the factual stipulation in the plea agreement nowhere indicates that only 10
kilograms could be attributed to Macedo. Rather, the plea agreement notes
that Macedo was engaged in a conspiracy, in which he received and distributed
“large quantities of methamphetamines.” While the agreement does contain a
factual stipulation that Macedo was present at a scene “where cars containing




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                                 No. 13-51190

5 kilograms of methamphetamine” were being delivered, the agreement
nowhere indicates that this was the exclusive episode involving Macedo.

      Following our review of counsel’s brief, Macedo’s response, and the
record, 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, and counsel is excused from further responsibilities
herein. Macedo’s motion for the appointment of new counsel is DENIED. See
United States v. Wagner, 

, 902-03 (5th Cir. 1998). The APPEAL
IS DISMISSED. See 5TH CIR. R. 42.2.




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