United States v. Portillo-Palencia

United States Court of Appeals
for the Fifth Circuit

No. 20-10493

United States of America,

Plaintiff—Appellee,

versus

Marlon Javier Portillo-Palencia,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC 6:19-CR-037-H

Before Jolly, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
While in detention for illegal entry to the United States, Marlon Javier
Portillo-Palencia pled guilty to the assault of Officer Johnny Castanuela, an
on-duty Immigrations and Customs Enforcement (ICE) officer. Portillo-
Palencia’s plea agreement included an appeal waiver. Prior to sentencing,
the district court adopted a presentence report (PSR) without objection from

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020

Lyle W. Cayce
Clerk
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either party. Based on the PSR, the district court imposed a within-
guidelines sentence of 18 months of imprisonment followed by two years of
supervised release.
On appeal, Portillo-Palencia contends that: (1) this court should adopt
a miscarriage-of-justice exception to otherwise-valid waivers of appellate
review contained in plea agreements, (2) the district court committed a
miscarriage of justice during sentencing in this case, and (3) the district
court’s sentence constitutes plain error. We decline to adopt such an
exception and otherwise AFFIRM the district court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Portillo-Palencia unlawfully arrived in the United States from
Honduras on July 5, 2019, claiming asylum. On July 12, 2019, Portillo-
Palencia was convicted of illegal entry in the Western District of Texas,
sentenced to time served, and taken into custody. Portillo-Palencia then
withdrew his asylum claim and was detained pending removal to Honduras.
On August 26, 2019, a detention officer informed Portillo-Palencia
that he was to be placed in administrative segregation pending the outcome
of three disciplinary write-ups that occurred at the detention center. The
detention officer then instructed him to be handcuffed, and Portillo-Palencia
refused. Portillo-Palencia became so combative that several officers were
needed to place him under control on the floor. Once controlled, the officers
put a set of leg restraints on Portillo-Palencia’s feet and assisted him in
standing up. When ICE Officer Castanuela responded to the scene, Portillo-
Palencia head-butted Castanuela and struggled against the other officers,
who again attempted to restrain Portillo-Palencia.
Castanuela did not suffer any visible injuries and did not seek medical
treatment after the altercation with Portillo-Palencia. But two other officers
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did. Officer A. Gutierrez severely injured his right ring finger, and Officer
Victor Sandoval was referred to the emergency room, where he was
diagnosed with a sprained ankle and prescribed pain medication.
Portillo-Palencia was indicted on September 11, 2019, and charged
with two counts of assault in violation of 18 U.S.C. § 111(a)(1) and § 111(b).
The indictment listed Castanuela and Sandoval as victims.
The United States Attorney filed a Superseding Information on
December 13, 2019, to which Portillo-Palencia ultimately pled guilty. In the
one-count Superseding Information, the government dropped the assault
charge based on Sandoval’s injuries and only charged Portillo-Palencia with
assault against Castanuela.
Portillo-Palencia pled guilty pursuant to a plea agreement. The plea
agreement contained an appeal waiver, which states:
The defendant waives the defendant’s rights, conferred by 28
U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal the conviction,
sentence, fine and order of restitution or forfeiture in an
amount to be determined by the district court. The defendant
further waives the defendant’s right to contest the conviction,
sentence, fine and order of restitution or forfeiture in any
collateral proceeding, including proceedings under 28 U.S.C.
§ 2241 and 28 U.S.C. § 2255. The defendant, however,
reserves the rights (a) to bring a direct appeal of (i) a sentence
exceeding the statutory maximum punishment, or (ii) an
arithmetic error at sentencing, (b) to challenge the
voluntariness of the defendant’s plea of guilty or this waiver,
and (c) to bring a claim of ineffective assistance of counsel.
Prior to sentencing, a probation officer compiled a PSR. The PSR
calculated Portillo-Palencia’s offense level as follows: The base offense level
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was 10 under U.S. S.G. §2A2.4(a). Additionally, because the offense
involved physical contact, the offense level was increased by three, pursuant
to U.S.S. G. §2A2.4(b)(1). Finally, Portillo-Palencia was subject to an
additional two-level increase pursuant to U.S.S.G. §2A2.4(b)(2), because the
victim sustained bodily injury. In total, this calculation provided for an
adjusted offense level of 15. But because Portillo-Palencia accepted
responsibility for the offense, his offense level was decreased by two, to 13.
U.S.S.G. §3E1.1(a). The total offense level of 13, combined with a criminal
history category of I, yielded a guideline imprisonment range of 12–18 months
with up to three years of supervised release. The PSR also acknowledged
that “[t]he [c]ourt shall consider all the factors listed in 18 U.S.C. § 3553(a),
as well as any information provided pursuant to 18 U.S.C. § 3661, in
determining the applicability of a guideline sentence versus the imposition of
a non-guideline (variance) sentence.”
Neither party objected to the PSR, and both parties agreed to the
accuracy of its contents. During sentencing, the district court stated, “[i]n
the process of being stood up, you head-butted a federal officer, and then you
began struggling with the other officers. In all, three officers were assaulted
or otherwise sustained injury from this interaction with you, with one seeking
treatment.” The district court then imposed a within-guidelines sentence of
18 months of imprisonment followed by two years of supervised release.
Portillo-Palencia now appeals his sentence to this court. Although his
plea agreement included a valid waiver of appellate review, he argues that this
court should adopt a miscarriage-of-justice exception to such waivers, apply
it to this case, and review the merits of his appeal.
On the merits, Portillo-Palencia contends that the two-level increase
for victim injury should not have been applied in computing his sentence due
to Officer Castanuela’s lack of visible injury or medical attention. He further
contends that the other officers’ injuries during the assault cannot be
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considered in assessing his offense level because those injuries were not
proven to result causally from his criminal conduct. Therefore, he argues,
his sentence was a miscarriage of justice and plainly erroneous. The
government counters that the other officers’ injuries arose out of the same
conduct for which Portillo-Palencia was convicted and that Portillo-
Palencia’s conduct nonetheless was the type that would typically inflict
injury. As such, the government argues there was no miscarriage of justice
in sentencing, and thus no error.
DISCUSSION
This Court conducts a de novo, two-step inquiry to determine
whether appellate review is barred by a waiver in a plea agreement, asking:
“(1) whether the waiver was knowing and voluntary and (2) whether the
waiver applies to the circumstances at hand, based on the plain language of
the agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005)
(citing United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005)) (holding
that “[b]ecause [the defendant] indicated that he read and understood the
agreement, which include[d] an explicit, unambiguous waiver of appeal, the
waiver was both knowing and voluntary”); see also United States v. Baymon,
312 F.3d 725, 727 (5th Cir. 2002).
In this case, Portillo-Palencia affirmed that both the plea agreement
and the appeal waiver were knowing and voluntary. Further, the appeal
waiver applies to this case based on its plain language. Portillo-Palencia thus
waived his rights to appeal, except to challenge an arithmetic error at
sentencing, a sentence exceeding the statutory maximum, the voluntariness
of the plea agreement, or to assert claim of ineffective assistance of counsel.
Portillo-Palencia does not raise any issue within these enumerated
exceptions. Therefore, the plain language of the plea agreement applies to
bar appellate review.
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Notwithstanding his valid appeal waiver, Portillo-Palencia contends
that this court should join six other circuits in adopting a miscarriage-of-
justice exception to the waiver and reach the merits of his appeal. See United
States v. Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014); United States v.
Guzman, 707 F.3d 938, 941 (8th Cir. 2013); United States v. Guillen, 561 F.3d
527, 531 (D.C. Cir. 2009); United States v. Shockey, 538 F.3d 1355, 1357 (10th
Cir. 2008); United States v. Khattak, 273 F.3d 557, 559–63 (3d Cir. 2001);
United States v. Teeter, 257 F.3d 14, 21–27 (1st Cir. 2001). But we conclude
that it is unnecessary to address whether this court should adopt such an
exception because, in any event, Portillo-Palencia has failed to show a
miscarriage of justice in this case.
Specifically, Portillo-Palencia argues that, because he only pled guilty
to the assault of Officer Castanuela, the district court’s consideration of other
officers’ injuries as “relevant conduct” in determining his sentencing
offense level was a miscarriage of justice. Under the Sentencing Guidelines,
courts may consider “relevant conduct” in sentencing, including “‘all acts
and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant,’ as long as those actions
‘occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.’” United States v. Vega-Ruiz, 775 F. App’x
148, 151 (5th Cir. 2019) (per curiam) (quoting U.S.S.G. § 1B1.3(a)(1)(A)).
Portillo-Palencia contends that relevant conduct must be criminal. In turn,
he asserts that the other officers’ injuries were caused not by any specific
criminal conduct but by his “mere noncompliance” with the guards.
Even crediting Portillo-Palencia’s argument, the district court’s
reliance on the other officers’ injuries as relevant conduct in determining his
sentence does not amount to a miscarriage of justice. While this court has
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declined to recognize a miscarriage-of-justice exception to an otherwise valid
waiver of appellate review, we have held that “relatively standard
challenge[s]” to a district court’s application of the Sentencing Guidelines
“would not fall within a miscarriage-of-justice exception” to circumvent an
appeal waiver. See United States v. Riley, 381 F. App’x 315, 316 (5th Cir. 2010)
(per curiam). Because Portillo-Palencia raises, in essence, no more than a
“relatively standard challenge” to the district court’s application of the
Sentencing Guidelines, we conclude that no miscarriage of justice occurred
here.
Moreover, Portillo-Palencia fails to establish that the district court’s
alleged error in sentencing would succeed under even the most generous
miscarriage-of-justice tests utilized by other circuits. For example, the Tenth
Circuit weighs four factors to determine unenforceability of an appeal waiver
due to a miscarriage of justice, namely, whether: “(1) the district court relied
on an impermissible factor such as race; (2) ineffective assistance of counsel
in connection with the negotiation of the waiver renders the waiver invalid;
(3) the sentence exceeds the statutory maximum; or (4) the waiver is
otherwise unlawful.” United States v. Cudjoe, 634 F.3d 1163, 1167 (10th Cir.
2011) (internal quotations and citations omitted); cf. United States v. Teeter,
257 F.3d 14, 26 (1st Cir. 2001) (considering “the clarity of the error, its
gravity, its character . . . , the impact of the error on the defendant, the impact
of correcting the error on the government, and the extent to which the
defendant acquiesced in the result”). Portillo-Palencia fails to show how his
sentence would be different but for the alleged miscarriage of justice, and he
articulates no constitutional violation or reliance on any impermissible factor
(such as race) in his sentencing. His argument thus falls well short of meeting
any of the grounds recognized by other circuits for disregarding his valid,
applicable, and enforceable waiver of appellate review.
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CONCLUSION
Because Portillo-Palencia fails to show that any miscarriage of justice
occurred in his sentencing, we need not address whether his otherwise valid
waiver of appellate review would be unenforceable on such a basis. Because
the waiver is valid, we do not reach the merits of Portillo-Palencia’s
contention that the district court committed plain error during sentencing.
The judgment of the district court is AFFIRMED.
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