USA v. Westley Kennedy

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Opinion issued by court as to Appellant Westley Kayeon Kennedy. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to dismiss appeal due to appeal waiver filed by Appellee USA is GRANTED in part and DENIED in part. [7810751-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Case: 15-10780 Date Filed: 02/02/2017 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-10780 Non-Argument Calendar ________________________ D.C. Docket No. 2:14-cr-00012-LGW-RSB-4 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WESTLEY KAYEON KENNEDY, a.k.a. K.K., Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (February 2, 2017) Before MARCUS, ROSENBAUM and FAY, Circuit Judges. PER CURIAM: The government’s motion to dismiss this appeal is GRANTED, in part, as to Kennedy’s argument that his plea agreement is procedurally unconscionable. See Case: 15-10780 Date Filed: 02/02/2017 Page: 2 of 2 United States v. Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015) (noting that a conviction appeal waiver will be enforced if the plea agreement is voluntary and taken in compliance with Rule 11). The government’s motion to dismiss is DENIED with respect to Kennedy’s remaining argument—that his guilty plea was involuntary because his counsel had a conflict of interest—because it is not barred by his guilty plea or the conviction appeal waiver in his plea agreement. See id. at 1281, 1285 (holding that a defendant’s claim that his plea was involuntary and unintelligent because his counsel rendered ineffective assistance is not barred by a conviction appeal waiver). However, the record is not sufficiently developed to allow meaningful review of Kennedy’s conflict of interest argument on direct appeal. See Massaro v. United States, 538 U.S. 500, 504-05 (2003). Accordingly, we AFFIRM Kennedy’s conviction, without prejudice to his ability to raise his conflict of interest claim on collateral review. AFFIRMED. 2

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