United States v. Alvarez-Ocanegra

* 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this opinion should not be published and is not precedent except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.
1 Alvarez-Ocanegra argues that his guilty plea was not
knowingly and voluntarily entered because he was not advised that
drug quantity was an element of his offense that must be proved
United States Court of Appeals
Fifth Circuit
F I L E D
May 17, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50759
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME ALVAREZ-OCANEGRA,
also known as Jaime Alvarez-Bocanegra,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:02-CR-182-1
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Alvarez-Ocanegra appeals his guilty-plea conviction
and sentence for conspiring to distribute heroin and launder
money. He makes numerous challenges to his conviction and
sentence.
The record indicates that Alvarez-Ocanegra knowingly and
voluntarily entered a guilty plea,1 reserving only the right to

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No. 05-50759
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to a jury. We will not consider the issue because it was raised
for the first time in his reply brief. Unida v. Levi Strauss &
Co., 986 F.2d 970, 976 n.4 (5th Cir. 1993).
challenge “any upward departure pursuant to U.S.S.G. § 5K2.0 from
the Guideline range found by the district court,” “waive[d] his
right to appeal his sentence on any ground, including any appeal
right conferred by 18 U.S.C. § 3742.” See United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v.
Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999); FED. R. CRIM.
P. 11(b)(1)(N). The Government has invoked the waiver provision.
As the district court did not upwardly depart in this case,
Alvarez-Ocanegra’s challenges to his sentence are waived under
the terms of his plea agreement.
Alvarez-Ocanegra’s argument that the Government withheld
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
is waived by Alvarez-Ocanegra’s valid guilty plea. See United
States v. Lampazianie, 251 F.3d 519, 526 (5th Cir. 2001); United
States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984).
Alvarez-Ocanegra’s argument that the Government violated the
treaty under which he was extradited by enhancing his sentence
based on a prior conviction also waived. Alvarez-Ocanegra
provided neither adequate argument in support of his assertion
nor adequate citation to authorities. See Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993) (holding that claims not adequately
argued in the body of the brief are deemed waived on appeal).

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No. 05-50759
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Alvarez-Ocanegra’s argument that his conviction is invalid
because § 841 is unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), is foreclosed by this court’s
decision in United States v. Slaughter, 238 F.3d 580, 582 (5th
Cir. 2000). Alvarez-Ocanegra concedes that his argument is
foreclosed. He raises the issue only to preserve it for Supreme
Court review.
AFFIRMED.

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