Case: 15-50149       Document: 00513427419         Page: 1     Date Filed: 03/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-50149                          United States Court of Appeals

                                   Summary Calendar
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                             March 17, 2016

UNITED STATES OF AMERICA,                                                    Lyle W. Cayce
                                                                                  Clerk
                                                  Plaintiff - Appellee

v.

NICHOLAS JOSE FLORES, also known as Nicky, also known as Nicholas J.
Flores,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-177-3


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Pursuant to a written plea agreement, Nicholas Jose Flores pleaded
guilty to: conspiracy to interfere with commerce by threats or violence, in
violation of 18 U.S.C. § 1951; and conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841 and 846. In that agreement, Flores waived the




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-50149

“right to appeal his sentence on any ground”, unless his constitutional rights
were violated by ineffective assistance of counsel or prosecutorial misconduct.
      Flores was sentenced to a within-advisory-Guidelines term of 235
months’ imprisonment.          In challenging that sentence, Flores asserts the
district court erred by: not grouping the counts of conviction; imposing a
significantly harsher sentence than that given to a similarly-situated co-
defendant; and not properly considering his background when weighing the 18
U.S.C. § 3553 sentencing factors.        Flores, however, does not address his
appellate waiver, which the Government asserts precludes his claims. He has
not filed a reply brief.
      In determining whether an appeal of a sentence is barred by a plea-
agreement waiver provision, we must analyze “whether the waiver[:] was
knowing and voluntary[;] and . . . applies to the circumstances at hand, based
on the plain language of the agreement”. United States v. Bond, 

,
544 (5th Cir. 2005). The waiver is both knowing and voluntary if Flores
“indicated that he had read and understood the plea agreement, which includes
an explicit, unambiguous waiver of appeal”. United States v. McKinney, 

, 746 (5th Cir. 2005).
      Again, Flores fails to even mention the waiver in his brief; therefore, any
challenges to its validity are abandoned. E.g., Yohey v. Collins, 

,
224–25 (5th Cir. 1993). Nonetheless, the record does not support a finding that
the waiver was unknowing and involuntary. Therefore, Flores’ claims about
his sentence are barred because they do not fall into any of the waiver’s
exceptions.
      Flores also contends the court abused its discretion by denying his
motion to continue sentencing, in order to challenge a state-court sentence on
post-conviction review. As this challenge arguably falls outside the scope of



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                                No. 15-50149

the appellate waiver, it will be considered. See 

. In any
event, courts “have broad discretion in deciding requests for continuances, and
we review only for an abuse of that discretion resulting in serious prejudice”.
United States v. German, 

, 854 (5th Cir. 2007). Flores cannot show
serious prejudice because the state-court relief he sought would not have
affected his Guidelines sentencing range, and therefore would not have
changed the outcome of his sentence. See United States v. Bishop, 111 F. App’x
343, 344 (5th Cir. 2004).
      AFFIRMED.




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