USA v. Danny Barrett
Filing
UNPUBLISHED OPINION FILED. [09-10937 Dismissed ] Judge: TMR , Judge: FPB , Judge: EBC Mandate pull date is 12/30/2010 for Appellant Danny Ray Barrett [09-10937]
USA v. Danny Barrett ase: 09-10937 C
Document: 00511317508 Page: 1 Date Filed: 12/09/2010
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 9, 2010 N o . 09-10937 Lyle W. Cayce Clerk
U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D A N N Y RAY BARRETT, D e fe n d a n t -A p p e lla n t
A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:07-CR-358-1
B e fo r e REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges. P E R CURIAM:* D a n n y Ray Barrett pleaded guilty to a superseding indictment charging h im with, inter alia, access device fraud (count 2) and wire fraud (count 5). The d is t r ic t court sentenced him to 120 months on each count to be served c o n c u r r e n t ly . Barrett seeks to appeal his sentence on the ground that the d is t r ic t court failed to apply properly U.S.S.G. § 3C1.3 and 18 U.S.C. § 3147. We c o n c lu d e that Barrett's appeal is barred by the appeal waiver of his plea a g r e e m e n t and DISMISS the appeal.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-10937 Document: 00511317508 Page: 2 Date Filed: 12/09/2010
No. 09-10937 A s part of his plea agreement, Barrett waived his right to appeal, but he r e s e r v e d the right to challenge a sentence exceeding the statutory maximum p u n is h m e n t , an arithmetic error at sentencing, the voluntariness of the plea or t h e appeal waiver, and any alleged ineffective assistance of his counsel. Because t h e Government seeks to enforce the appeal waiver, we consider its applicability. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). We apply a twos t e p inquiry, asking "(1) whether the waiver was knowing and voluntary and (2) w h e t h e r the waiver applies to the circumstances at hand, based on the plain la n g u a g e of the agreement." United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2 0 0 5 ). Barrett does not contest the voluntariness of his guilty plea or the appeal w a iv e r , so we proceed to the second step. B a r r e t t argues that the appeal waiver is inapplicable here because he c h a lle n g e s an arithmetic error at sentencing. We disagree. Barrett committed h is wire fraud offense while he was on pretrial release for the access device fraud o ffe n s e . As a result, Barrett received a 3-level adjustment to his base offense l e v e l pursuant to U.S.S.G. § 3C1.3, which is designed to effectuate statutory s e n t e n c in g enhancements required by 18 U.S.C. § 3147. See United States v. D is o n , 573 F.3d 204, 207 n.7 (5th Cir. 2009). U n d e r § 3147, a defendant convicted of an offense committed while on r e le a s e shall be sentenced, in addition to the sentence for the underlying offense, t o a separate consecutive term of imprisonment. See § 3147. The sentencing g u id e lin e s instruct that where § 3147 is applicable, the district court should a p p ly a 3-level adjustment to the defendant's offense level and should "divide the s e n te n c e on the judgment form between the sentence attributable to the u n d e r ly in g offense and the sentence attributable to the enhancement." § 3C1.3, c m t . n.1. The total sentence may not exceed the adjusted guideline range for the u n d e r ly in g offense. Id. "For example, if the applicable adjusted guideline range is 30-37 months and the court determines a `total punishment' of 36 months is 2
Case: 09-10937 Document: 00511317508 Page: 3 Date Filed: 12/09/2010
No. 09-10937 a p p r o p r ia te , a sentence of 30 months for the underlying offense plus 6 months u n d e r 18 U.S.C. § 3147 would satisfy this requirement." Id. The guideline's p u r p o s e is to "enable[] the court to determine and implement a combined `total p u n is h m e n t ' consistent with the overall structure of the guidelines, while at the s a m e time complying with the statutory requirement." Id., cmt. background. B a r r e t t argues that the district court failed to impose a sentence in accord w it h § 3C1.3 and § 3147 because the court did not apportion any part of the s e n te n c e between the underlying offense and the enhancement. Barrett
c o n t e n d s that this was an arithmetic error because the guideline requires the d is t r ic t court to divide the sentence. We are not persuaded. N o t h i n g in Barrett's plea agreement or in his plea colloquy leads us to b e lie v e that the parties intended the phrase "arithmetic error" as used in the a p p e a l waiver to mean anything beyond its plain text as an error involving a m a t h e m a t ic a l calculation. See Bond, 414 F.3d at 545 ("We must interpret the p le a agreement like a contract, in accord with what the parties intended."). Barrett argues that the most common mathematical operations are addition, s u b tr a c t io n , multiplication, and division, and that because the district court fa ile d to divide the sentence and subtract the penalty provision from the total p u n is h m e n t , the district court's error here was a mathematical error. But the d is t r ic t court's application of § 3C1.3 does not merely require the court to divide a n d subtract according to a pure mathematical formula. Barrett does not
c o m p la in , for example, that the district court miscalculated the adjusted g u id e lin e range. Rather, the court is called upon to exercise its judgment in a p p o r tio n in g the total punishment between the sentence for the underlying o ffe n s e and the separate, consecutive sentence due to the enhancement provision o f § 3147. The guidelines provide no mathematical formula for this
a p p o r tio n m e n t.
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Case: 09-10937 Document: 00511317508 Page: 4 Date Filed: 12/09/2010
No. 09-10937 B a r r e t t argues that the court failed to apportion the sentence at all, and t h a t the court's error resulted in a "misapplication" of § 3C1.3 that "violated" the s t a t u t o r y requirements of § 3147. Barrett's argument is a direct challenge to the d is t r ic t court's application of the sentencing guidelines. Such a challenge,
h o w e v e r , has been waived in the plea agreement. Accordingly, the appeal must b e dismissed. A P P E A L DISMISSED.
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