Petition for Writ of Certiorari — Guadalupe Avendano-Vasquez, Petitioner v. United States

IN THE SUPREME COURT OF THE UNITED STATES

GUADALUPE AVENDANO-VASQUEZ,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX

Case: 15-12179 Date Filed: 09/27/2018 Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 15-12179

Non-Argument Calendar

D.C. Docket No. 8: 14-cr-00395-VMC-TGW- 1

UNITED STATES OF AMERICA,

Plaintiff Appellee,

-

versus

GUADALUPE AVENDANO-VASQUEZ,

a.k.a. Matt,

Defendant Appellant.

-

Appeal from the United States District Court

for the Middle District of Florida

(September 27,2018)

Before TJOFLAT, JORDAN, and HULL, Circuit Judges.

PER CURJAM:

Guadalupe Avendano-Vasquez appeals from his conviction and sentence,

which included a three-year term of supervised release, imposed after he pleaded

Case: 15-12179 Date Filed: 09/27/2018 Page: 2 of 2

guilty to transferring false identification documents, pursuant to a written plea

agreement. He contends that there is a question as to whether his conviction was

considered final for removal purposes, and his term of supervised release should be

vacated because the district court did not consider his status as a defendant likely

to be deported. The Government has moved to dismiss the appeal pursuant to the

sentence appeal waiver contained in the plea agreement.

To the extent that Avendano-Vasquez challenges his removal or related

proceedings, we lack jurisdiction to review his arguments and DISMISS in part his

appeal for lack of jurisdiction.

See U.S.C. § 1229a(a)(1), (3); 8 U.S.C. §

1252(a)(1), (b)(l); Dakane v. US. Alt'y Gen., 399 F.3d 1269, 1272 11.3 (11th Cir.

2005).

As to the remainder of the appeal, the Government's motion to dismiss the

appeal pursuant to the appeal waiver in Avendano-Vasquez's plea agreement is

GRANTED. See United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir.

1993) (sentence appeal waiver will be enforced if it was made knowingly and

voluntarily); United Slates v. Grinard-Henry, 399 F. 3d 1294, 1296 (11th Cir.

2005) (waiver of the right to appeal includes waiver of the right to appeal difficult

or debatable legal issues or even blatant error).

-

2

Case 8:14-cr-00395-VMC-TGW Document 46 Filed 05/07/15 Page 1 of 7 PagelD i4 9e 1014

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA

Case Number. 8:14-cr-395.T-33TGW

USM Number: 61362-018

vs

GUADALUPE AVENDANO-VASQUEZ

Bryant R. Camareno, Retained

JUDGMENT IN A CRIMINAL CASE

The defendant pleaded guilty to Count Three of the Indictment. Accordingly, the court has adjudicated that the defendant

is guilty of the following offense:

Title & Section

Nature of Offense

Date Offense

Concluded

Count

NumberLs)

18 U.S.C. §§ 1028(a)(2),

1028(b)(1)(A)(i) and 1028(c)( 1)

Transferring False Identification Documents

March 26, 2014

Three

The defendant is sentenced as provided in the following pages of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

Counts One, Two, and Four through Nine is dismissed on the motion of the United States.

IT IS ORDERED that the defendant shall notify the United States attorney for this district within 30 days of any change of

name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are

fully paid If ordered to pay restitution, the defendant shall notify the court and United States attorney of any material change

in the defendant's economic circumstances.

_-

Date oJosition of Sentence:

M(2015

7)

jzLi Ltct/./'.

VIRGIftIA M. HERNANDEZ CO GTON

UNITED STATES DISTRICT JUDGE

May

AO 2458 (Rev. 4/09) Judgment in a Criminal Case

.2015

Case 8:14-cr-00395-VMC-TGW Document 46 Filed 05/07/15 Page 2 of 7 PagelD 14?9e 2 of 4

Guadalupe Avendano-Vasquez

8:14-cr-395.T.33TGW

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for

a

total term of TWENTY-FOUR (24) MONTHS.

The Court recommends to the Bureau of Prisons that the defendant:

Be confined at McRae Cl in McRae Helena,

Georgia.

The defendant is remanded to the custody of the United: States Marshal.

RETURN

I have executed this judgment as follows:

Defendant delivered on

to

at

with a certified copy of this judgment.

UNITED

STATES

MARSHAL

By:

Deputy U.S. Marshal

AO 2458 (Rev 4I09) Judgment in a Criminal Case

Case 8:14-cr-00395-VMC-TGW Document 46 Filed 05107/15

GuadalUpe Avendano-Vasquez

Page 3 of 7 PagelD

14 3o14

8:14-cr-395.-T-33TGW

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of THIRTY-SIX (36)

MONTHS.

The defendant shall report to the probation office in the district to which the defendant is released within 72 hours

of release from custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not illegally possess a controlled substance.

For offenses committed on or after September 13, 1994:

The mandatory drug testing requirements of the Violent Crime Control Act are waived. However, the Court orders

the defendant to submit to random drug testing not to exceed 104 tests per year.

The defendant shall not possess a firearm, destructive device, or any other dangerous weapon.

If this judgment imposes a fine or a restitution obligation, it shall be a condition of supervision that the defendant

pay any such fine, or restitution that remains unpaid at the commencement of the term of supervision in accordance with the

Schedule of Payments set forth in the Criminal Monetary Penalties sheet of this judgment.

The defendant shall comply with the standard conditions that have been adopted by this court (set forth below).

The defendant shall also comply with the additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

the defendant shall not leave the judicial district without the permission of the court or probation officer;

the defendant shall report to the probation officer in a manner and frequency directed by the court or probation

officer;

the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation

officer

the defendant shall support his or her dependents and meet other family responsibilities;

the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling,

training, or other acceptable reasons;

the defendant shall notify the probation officer at least ten (10) days prior to any change in residence or

employment:

the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or

administer any controlled substance or any paraphernalia related to any controlled substances, except as

prescribed by a physician;

the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any

person convicted of a felony, unless granted permission to do so by the probation officer;

AO 2458 (Rev 4/09) Judgment in a Criminal Case

Case 8:14-cr-00395-VMC-TGW Document 46 Filed 05/07/15 Page 4 of 7 PagelD 444

'Guadalupe Avendano-Vasquez

8:14-cr.395-T-331GW

10.

the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit

confiscation of any contraband observed in plain view by the probation officer;

11

the defendant shall notify the probation officer within seventy-two (72) hours of being arrested or questioned by a

law enforcement officer;

the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement

agency without the permission of the court;

as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make

such notifications and to confirm the defendant's compliance with such notification. requirement.

ADDITIONAL CONDITIONS OF SUPERVISED RELEASE

Should the defendant be deported, he/she shall not be allowed to re-enter the United States without the express

permission of the appropriate governmental authority.

2.

The defendant shall cooperate in the collection of DNA, as directed by the Probation Officer.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in accordance with the schedule of

payments set forth in the Schedule of Payments.

Total Assessment

Total Fine

Total Restitution

$100.00

Waived

N/A

SCHEDULE OF PAYMENTS

Special assessment shall be paid in full and is due immediately.

FORFEITURE

Defendant shall forfeit to the United States those assets previously identified in the Indictment, Plea Agreement and

Order of Forfeiture, that are subject to forfeiture.

The defendant shall pay interest on any fine or restitution of more than $2,500, unless the fine or restitution is paid

in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. 3612(f). All of the payment options on

§

the Schedule of Payments may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. 3612(g).

§

'Findings for the total amount of losses are required under Chapters 109A, 110. 110A, and 113A of Title 18, United

States code, for offenses committed

on or after September 13. 1994 but before April 23. 1996.

(pc.

AO 245B (Rev. 4109) Judgment in a Criminal Case

Case 8:14-cr-00395-VMC-TGW Document 46 Filed 05/07/15 Page 5 of 7 PagelD 146

Case 8:14-cr-00395-VMC-TGW Document 40 Filed 04/22/15 Page 1 of 3 PagelD 108

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA

V.

Case No. 8:14-cr-395-T-33TGW

GUADALUPE AVENDANO-VASQUEZ

FINAL JUDGMENT OF FORFEITURE

THIS CAUSE comes before the Court upon the United States' Motion for a

Final Judgment of Forfeiture, pursuant to 21 U.S.C. § 853(n)(7) and Rule

32.2(c)(2), of the Federal Rules of Criminal Procedure for the following assets:

An HP LaserJet Pro Color Printer, Serial Number

CM1415CM1415FNW;

An HP Pro Computer 3500, Serial Number MXL34212HM;

C.

A Dell Computer Tower, Serial Number 829N1 Ri;

An HP Computer Tower, Serial Number 3CR217OWPP;

A Laminating Machine, Serial Number 09091529;

An Evolis Pebble 4card printer, Serial Number

10000166890;

A Fargo Persona C30 printer, Serial Number A7380667;

An HP DeskJet Printer/Scanner/Copier, Serial Number

CN979412VW;

I.

A Kodak ESP 7250 printer, Serial Number

CNI K670064538131 1-041<1;

An HP Office Jet Pro 8500 printer. Serial Number

MY9AL4I1NP,

A Brother Printer, Serial Number V62234KNJ208391;

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YJi'v Qocument

uocumert 4(5

4F

Gas

I.

Seven Cell Phones;

M.

Five digital cameras;

eç//15 Page 6 of 7 PagelD 147

15 Page 2 of 3 PagelD 109

Three miscellaneous thumb drives;

Ten miscellaneous SD memory cards;

P.

Two Fargo Smart Load printer cartridges;

Fourteen Evolis color printing ribbons;

Six paper cutters;

S.

Two shredders;

t.

One box of card stock;

One box of paper stock; and

Corel Draw Graphics software.

On February 20, 2015, the Court entered a Preliminary Order of Forfeiture

for the assets described above, pursuant to 18 U.S.C. § 982(a)(6)(A). Doc. 25.

The Court finds that in accordance with 21 U.S.C. § 853(n) and Rule

32.2(b)(6)(C), the United States published notice of the forfeiture and of its intent

to dispose of the assets on the official government website,

w.forfeiture.-go

from February 21, 2015 through March 22, 2015. Doc. 33. The publication

gave notice to all third parties with a legal interest in the assets to file with the

Office of the Clerk, United States District Court, Middle District of Florida, Sam

Gibbons Federal Courthouse,, 2nd Floor, 801 North Florida Avenue, Tampa,

Florida 33602, a petition to adjudicate their interest within 60 days of the first date

2

Case 8lcrOc9

of publication.

VJC1Q' Document 46 FJled 05/07/15 Page 7 of 7 PagelD 148

Document 40 Fifed 04/22115 Page 3 of 3 PagelD 110

No third party or entity has filed a petition or claimed an

interest in the assets, and the time for filing such petition has expired.

Accordingly, it is hereby:

ORDERED, ADJUDGED, and DECREED that for good cause shown, the

United States' motion is GRANTED.

It is FURTHER ORDERED that pursuant to 21 U.S.C. § 853(n)(7) and

Federal Rule of Criminal Procedure 32.2(c)(2), all right, title and interest in the

assets identified above are CONDEMNED and FORFEITED to the United States

for disposition according to law.

Clear title to the assets is now vested in the United States of America.

DONE and ORDERED in Tampa. Florida, this 22nd day of Ago, 2015.

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Copies to:

Megan K. Kistler, AUSA

Counsel of Record

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