### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 50149 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. NICHOLAS JOSE FLORES, also known as Nicky, also known as Nicholas J. Flores , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 5:13

- CR

- 177

- 3

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Pursuant to a written plea agreement, Nicholas Jose Flores pleaded guilty to : c onspiracy to interfere with commerce by threats or violence , in violation of 18 U.S.C. § 1951; and conspiracy to distribute methampheta mine , i n violation of 21 U.S.C. §§ 841 and 846

. In that agreement, Flores waived the

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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 March 17, 2016 Lyle W. Cayce Clerk Case: 15-50149 Document: 00513427419 Page: 1 Date Filed: 03/17/2016N o. 15

- 50149

2 “right to appeal his sentence on any ground”, unless his constitutional rights were violated by ineffective assistance of counsel or prosecutorial misconduct.
Flores wa s sentenced to a within

- advisory

- Guidelines term of 235 months’ imprisonment. In challenging that sentence, Flores asserts the district court erred by: not grouping the counts of conviction ; imposing a significantly harsher sentence than that given to a similarly

- situated co

defendant; and not properly considering his background when weighing the 18 U.S.C. § 3553 sentencing factors

. Flores , however, does not address his appellate waiver , which the Government asserts precludes his claims. He has not file d a reply brief.
In determin ing whether a n appeal of a sentence is barred by a plea

agreement waiver provision , we must analyze “ whether the waiver [ : ] was knowing and voluntary [ ; ] and

. . . appl ies to the circumstances at hand, based on the plain langu age of the agreement ”

. United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005). The waiver is both knowing and voluntary if Flores “indicated that he had re ad and understood the plea agreement, which includes an explicit, unambiguous waiver of appeal”

. United States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005). Again, Flores fails to even mention the waiver in his brief ; therefore, any challenges to its validity are abandoned. E.g. , Yohey v. Collins , 985 F.2d 222,
224

– 25 (5th Cir. 1993). N onethel ess, the record does not support a finding that
the waiver was un knowing and in voluntary. Therefore , Flores’ claims about
his sentence are barred because they do not fall into any of the waiver’s exceptions.
Flores also contends the court abused its disc retion by denying his motion to continue sentencing , in order to challenge a state

- court sentence on post

- conviction review. As this challenge arguably falls outside the scope of Case: 15-50149 Document: 00513427419 Page: 2 Date Filed: 03/17/2016N o. 15

- 50149

3 the appellate waiver, it will be considered. See Bond , 414 F.3d at 544. In any event, c ourts “ have broad discretion in deciding requests for continuances , and

we review only for an abuse of that discretion resulting in serious prejudice”. United States v. German , 486 F.3d 849, 854 (5th Cir. 2007). Flores cannot show serious pr ejudice because the state

- court relief he sought would not have affected his Guidelines sentencing range , and therefore would not have changed the outcome of his sentence

. See United States v. Bishop , 111 F. App’x 343, 344 (5th Cir. 2004). AFFIRMED. Case: 15-50149 Document: 00513427419 Page: 3 Date Filed: 03/17/2016