United States v. Torres Marrufo

Case: 22-50189 Document: 00516681844 Page: 1 Date Filed: 03/20/2023

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 22-50189

FILED March 20, 2023

Summary Calendar

____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Jose Antonio Torres Marrufo,

Defendant—Appellant.

______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-849-6 ______________________________

Before Barksdale, Stewart, and Ho, Circuit Judges.

Per Curiam: *

Jose Antonio Torres Marrufo appeals his below-Guidelines 480- months’ sentence for: conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity; conspiracy to kill in a foreign country; and kidnapping. See 18 U.S.C. §§ 956, 1201, 1962(d). He pleaded

Case: 22-50189 Document: 00516681844 Page: 2 Date Filed: 03/20/2023

No. 22-50189 guilty pursuant to a written plea agreement which included, inter alia, an appeal waiver, which has two exceptions not applicable to this appeal.

Marrufo’s Guidelines Sentencing range was life imprisonment. In sentencing, the court accepted the first of two requests by the Government for a downward departure to reach the above-stated 480-months’ sentence. Marrufo maintains the court erred by rejecting the second request, which would have resulted in a 420-months’ sentence.

The Government seeks to enforce the appeal waiver. Marrufo contends the waiver should not be enforced because a miscarriage of justice will result if he cannot challenge the substantive reasonableness of his sentence. He does not claim his waiver was unknowing or involuntary, nor does he claim his challenge is not within the scope of the waiver.

We review de novo whether an appeal waiver bars an appeal. E.g., United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). Although some circuits recognize a miscarriage-of-justice exception to a valid appeal waiver, this court has “declined explicitly either to adopt or to reject it”. United States v. Barnes, 953 F.3d 383, 388–89 (5th Cir. 2020). Even if we recognized this exception, Marrufo’s “standard challenge to the district court’s discretionary denial of a downward departure . . . does not present an assertion of a miscarriage of justice”. United States v. Kelly, No. 22-10300, 2023 WL 314299, at *1 (5th Cir. 2023) (unpublished); see also United States v. Portillo-Palencia, 837 F. App’x 286, 290 (5th Cir. 2020); United States v. Riley, 381 F. App’x 315, 316 (5th Cir. 2010).

DISMISSED.