USA v. Roy Maurer

Filing 511104108

Case: 09-30850

Document: 00511104108

Page: 1

Date Filed: 05/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30850 S u m m a r y Calendar May 7, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. R O Y MAURER, 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 Middle District of Louisiana U S D C No. 3:08-CR-112-1

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* R o y Maurer appeals the 188-month sentence he received following his g u ilt y -p le a conviction for distributing methamphetamine, in violation of 21 U .S .C . § 841(a). He seeks to challenge the district court's calculation of his g u id e lin e s range, specifically, the determination of the quantity of drugs a tt r ib u ta b le to him as relevant conduct for sentencing purposes. The

G o v e r n m e n t argues that the appeal is barred by the appeal waiver in Maurer's p le a agreement. Maurer contends that the waiver is unenforceable because 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Document: 00511104108 Page: 2 No. 09-30850

Date Filed: 05/07/2010

d i s tr ic t court did not review the contents of the waiver verbatim with him after it was read into the record and that, as a result, it cannot be said with certainty t h a t the waiver was knowingly and intelligently made. Maurer specifically fa u l t s the district court for failing to advise him that the waiver would bar a c h a lle n g e to any relevant-conduct determinations. For a defendant's waiver of his right to appeal to be knowing and v o lu n t a r y , the "defendant must know that he had a right to appeal his sentence a n d that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 ( 5 t h Cir. 1994) (internal quotation marks and citation omitted). A waiver is both k n o w in g and voluntary if the defendant "indicated that he had read and u n d e r s to o d the plea agreement, which includes an explicit, unambiguous waiver o f appeal." United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). As p a r t of the plea colloquy, the district court must address the defendant in open c o u r t and determine whether the defendant understands the waiver. See FED. R . CRIM. P. 11(b)(1)(N). We review the validity of an appeal waiver de novo. U n ite d States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005). A t rearraignment, the plea agreement was read in its entirety into the r e c o r d , and Maurer stated under oath that he had read and signed it. The d i s tr ic t court explained the waiver of appeal provision to Maurer, and Maurer in d ic a te d that he had reviewed it with counsel and understood it. He raised no q u e s tio n about his plea or the waiver provision. The waiver is therefore valid a n d enforceable. See FED. R. CRIM. P. 11(b)(1)(N); McKinney, 406 F.3d at 746. M a u re r makes no argument that his sentencing challenge falls within one o f the enumerated exceptions to the waiver in his plea agreement. Instead, he c o n t e n d s that, even if enforceable, the waiver should not bar his appeal because t h e failure to consider his claim will result in a miscarriage of justice. This court r o u t in e ly has ruled that issues waived in a valid, enforceable appeal waiver need n o t be considered. See, e.g., Bond, 414 F.3d 542, 546 (5th Cir. 2005); McKinney, 4 0 6 F.3d at 747. In the present case, we need not determine whether we should 2

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Document: 00511104108 Page: 3 No. 09-30850

Date Filed: 05/07/2010

a d o p t a miscarriage-of-justice exception to the enforcement of appeal waivers b e c a u se Maurer's substantive claim is a relatively standard challenge to the d is t r ic t court's guidelines range calculation that would not fall within a m is c a r r ia g e -o f-ju s tic e exception. See United States v. Andis, 333 F.3d 886, 8919 2 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001). M a u r e r "is bound to his obligations under the plea agreement," and the appeal w a iv e r bars his appeal. McKinney, 406 F.3d at 747. A F F IR M E D .

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