USA v. Grady Riley

Filing 511136320

USA v. Grady Riley

Doc. 511136320

Case: 09-50942

Document: 00511136320

Page: 1

Date Filed: 06/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50942 S u m m a r y Calendar June 9, 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. G R A D Y MICHAEL RILEY, D e f e n d a n t ­ A p p e l la n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:09-CR-820-1

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* G r a d y Michael Riley appeals the 78-month sentence he received following h i s guilty-plea conviction for possessing child pornography, in violation of 18 U .S .C . § 2252(a)(4)(B). He seeks to challenge the reasonableness of the sentence i m p o s e d , specifically arguing that the district court erred in refusing to vary b e lo w the guidelines range in his case. The Government argues that the appeal is barred by the appeal waiver in Riley's plea agreement.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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F o r 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 relinquishing that right. United States v. Portillo, 18 F.3d 290, 2 9 2 (5th Cir. 1994). A waiver is both knowing and voluntary if the defendant " in d i c a t e d that he had read and understood the plea agreement, which includes a n explicit, unambiguous waiver of appeal." United States v. McKinney, 406 F .3 d 744, 746 (5th Cir. 2005). As part of the plea colloquy, the district court m u s t address the defendant in open court and determine whether the defendant u n d e r s ta n d s the waiver provision. See FED. R. CRIM. P. 11(b)(1)(N). We review th e validity of an appeal waiver de novo. United States v. Burns, 433 F.3d 442, 4 4 5 (5th Cir. 2005). R ile y waived his right to appeal his sentence on any ground and further w a iv e d his right to collaterally challenge his sentence except for claims of p r o s e c u t o r ia l misconduct or ineffective assistance. Riley signed the plea

a g r e e m e n t, indicating that he had read and reviewed it with counsel and that h e understood the agreement and voluntarily agreed to its terms. At

r e a rr a ig n m e n t , the magistrate judge specifically admonished him about the w a iv e r provision. Riley stated that he understood, and he did not express any c o n fu s io n or misgivings concerning the appeal waiver. The record thus

e s t a b lis h e s that Riley's waiver was knowing, voluntary, and enforceable. See P o rtillo , 18 F.3d at 292-93; FED. R. CRIM. P. 11(b)(1)(N). F o r the first time in his reply brief, Riley contends that the waiver should n o t bar his appeal because the failure to consider his claim will result in a m is c a r r ia g e of justice. We decline to consider the argument. See United States v . Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006) ("[T]his Court will not o r d in a r ily consider arguments raised for the first time in a reply brief."). Even if we were to consider it, the argument lacks merit. This court routinely has r u le d that issues waived in a valid, enforceable appeal waiver need not be c o n s id e r e d . See, e.g., United States v. Bond, 414 F.3d 542, 546 (5th Cir. 2005); 2

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M c K in n e y , 406 F.3d at 747. Moreover, we need not determine whether we s h o u ld adopt a miscarriage-of-justice exception to the enforcement of appeal w a iv e r s because Riley's substantive claim is a relatively standard challenge to th e district court's refusal to vary below the guidelines range that would not fall w ith in a miscarriage-of-justice exception. See United States v. Andis, 333 F.3d 8 8 6 , 891-92 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557, 562-63 (3d C i r . 2001). Riley "is bound to his obligations under the plea agreement," and the a p p e a l waiver bars his appeal. See McKinney, 406 F.3d at 747. A F F IR M E D .

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