United States v. Garcia-Alvarez

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-51283
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDINO GARCIA-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1160-ALL-PM
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bernardino Garcia-Alvarez appeals his sentence for
possession with intent to distribute 50 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841. He argues that the
waiver-of-appeal provision in his plea agreement is invalid and
that the court clearly erred in denying him a two-level reduction
in his offense level pursuant to U.S.S.G. § 3B1.2(b).
The district court did not explain the waiver-of-appeal
provision to Garcia at the guilty-plea hearing to insure that
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2004
Charles R. Fulbruge III
Clerk

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No. 03-51283
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Garcia understood the consequences of the waiver, nor did the
court ask him whether he had read the plea agreement and
understood it. See United States v. Robinson, 187 F.3d 516, 517
(5th Cir. 1999). Therefore, the waiver was not knowingly and
voluntarily made. See id.
The district court did not misapply the guidelines nor
clearly err in determining that Garcia was not entitled to an
adjustment based on his role in the offense. Garcia has not
shown by a preponderance of the evidence that there was another
person involved in the offense. See United States v. Brown, 54
F.3d 234, 241 (5th Cir. 1995); U.S.S.G. § 3B1.2, comment. (n.2).
Nor has he provided any evidence to rebut the probation officer’s
finding that there was no information to substantiate or
corroborate the existence of a more culpable person in this
transaction. Therefore, it was not clear error for the court to
adopt that finding. See Brown, 54 F.3d at 241.
AFFIRMED.

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