IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10658

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NEIL NICK RENE,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-95-3

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Neil Nick Rene pleaded guilty, pursuant to a written plea agreement, to 

conspiracy to possess with intent to distribute 50 kilograms or more of 

marijuana and conspiracy to launder monetary instruments, and he was 

sentenced to 151 months of imprisonment on each count, to run concurrently. 

As part of the agreement, Rene broadly waived his right to appeal his 

conviction and sentence, reserving only the rights to appeal any punishment 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10658

imposed in excess of the statutory maximum, to challenge the voluntariness of 

his guilty plea or appeal waiver, and to bring a claim of ineffective assistance 

of counsel that influenced the voluntariness of the plea or waiver.

On appeal, Rene contends that the district court erred in applying the

importation enhancement under U.S.S.G. § 2D1.1(b)(14)(C) and in 

determining the drug quantities used to calculate his base offense level and 

further that the district court failed to properly consider and weigh relevant 

mitigating factors under 18 U.S.C. § 3553(a). The Government argues that the 

appeal is barred by the appeal waiver provision of the plea agreement. Rene 

acknowledges the waiver but contends it is invalid.

As an initial matter, Rene’s contention that his guilty plea violates due 

process because he was not aware of the actual sentence he faced or that he 

would be held accountable for “factually unsupported” drug amounts is refuted 

by the record. In writing and during his rearraignment, Rene verified that he

understood that he faced a maximum possible penalty of 20 years in prison on 

each count. He therefore was fully aware of the consequences of his guilty plea. 

See United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). 

Further, the record of Rene’s rearraignment shows that the waiver was 

knowing and voluntary, as Rene knew he had the right to appeal and that he 

was giving up that right as set forth in the plea agreement. See United States 

v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v. Portillo, 18 

F.3d 290, 292-93 (5th Cir. 1994). Rene’s argument that he was unaware he 

would be without recourse to correct an “improper” or “unjust” sentence 

resulting from an unforeseen offense level does not alter this conclusion. See 

United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992). Similarly, 

Rene’s challenge to the group guilty-plea procedure fails, as the record reflects 

that the magistrate judge addressed the defendants individually and was 

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No. 13-10658

careful to obtain individual answers from each defendant, including Rene, and 

Rene did not object to the procedure. See United States v. Salazar-Olivares, 

179 F.3d 228, 229-30 (5th Cir. 1999). Further, the waiver was not rendered 

invalid by the district court’s mistaken assertion at sentencing regarding 

Rene’s appellate rights and the Government’s failure to correct the mistake. 

See Melancon, 972 F.2d at 568. 

Because the plain language of the appeal waiver provision applies to 

Rene’s challenges to his sentence, we will enforce the waiver and DISMISS the 

appeal. See United States v. Bond, 414 F.3d 542, 545-46 (5th Cir. 2005).

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