Case: 12-10042       Document: 00512154935         Page: 1     Date Filed: 02/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 25, 2013
                                     No. 12-10042
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADRIAN TORRES HUERTA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:01-CR-94-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Adrian Torres Huerta, federal prisoner # 27918-177, pleaded guilty,
pursuant to a written plea agreement, to distribution of methamphetamine
within 1,000 feet of an elementary school and aiding and abetting. The district
court applied the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) after
finding that Huerta possessed at least one firearm during his offense, and the
district court sentenced Huerta to 210 months of imprisonment and eight years
of supervised release. Before the court is Huerta’s appeal from the denial of his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10042    Document: 00512154935     Page: 2   Date Filed: 02/25/2013

                                 No. 12-10042

motion for a writ of mandamus, in which he sought to compel the Government
to tender specific performance of its alleged promise that the § 2D1.1(b)(1)
enhancement would not be applied to Huerta.
      Huerta contends that the Government’s promise not to utilize § 2D1.1(b)(1)
was made in conjunction with his plea agreement, as demonstrated by the
parties’ agreement to strike from the plea agreement a stipulation that Huerta
understood § 2D1.1(b)(1) would apply to his case. According to Huerta, the
Government breached the plea agreement by thereafter presenting evidence and
argument in support of the § 2D1.1(b)(1) enhancement at his sentencing.
      Initially, it is uncertain whether the district court had jurisdiction to
consider the merits of Huerta’s motion, which challenged his sentence and plea
agreement. Such claims are typically considered in 28 U.S.C. § 2255 motions.
See Reyes-Requena v. United States, 

, 901 (5th Cir. 2001); United
States v. Cates, 

, 151 (5th Cir. 1992). Huerta has not received this
court’s authorization to file a successive § 2255 motion, nor do his arguments on
appeal show that he should be permitted to bring such a motion.
      Nevertheless, even assuming arguendo that Huerta properly raised his
arguments in his motion for a writ of mandamus, he still has not shown “that his
right to issuance of the writ is clear and indisputable.”      United States v.
Williams, 

, 281 (5th Cir. 2005). The removal of the stipulation in
question from his plea agreement does not establish that the Government agreed
that § 2D1.1(b)(1) would not apply. Huerta has not shown error in connection
with the disputed judgment.
      Accordingly, the judgment is AFFIRMED.




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