USA v. Shannon Pitt
UNPUBLISHED OPINION FILED. [11-40319 Affirmed] Judge: JES , Judge: EMG , Judge: HRD. Mandate pull date is 10/18/2011 for Appellant Shannon Thomas Pitts [11-40319]
Date Filed: 09/27/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
September 27, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
SHANNON THOMAS PITTS,
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-124-1
Before SMITH, GARZA, and DeMOSS, Circuit Judges.
Shannon Thomas Pitts pleaded guilty, pursuant to a written agreement,
to one count of bank robbery and was sentenced to a 71-month term of
imprisonment and to a three-year term of supervised release. As part of the
agreement, Pitts broadly waived his right to appeal his conviction and sentence,
reserving only the right to appeal any punishment imposed in excess of the
statutory maximum and the right to appeal based on a claim of ineffective
assistance of counsel that affects the validity of the waiver or the plea itself.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 09/27/2011
On appeal, Pitts contends that the district court erred in imposing a twolevel enhancement under U.S.S.G § 2B3.1(b)(2)(F). The Government argues that
the appeal is barred by the appeal waiver provision of the plea agreement.
A defendant may waive his right to appeal if the waiver is made knowingly
and voluntarily. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
To determine whether an appeal of a sentence is barred by an appeal waiver
provision in a plea agreement, this court conducts a two-step inquiry: (1)
whether the waiver was knowing and voluntary and (2) whether the waiver
applies to the circumstances at hand, based on the plain language of the
agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
A defendant’s waiver is knowing and voluntary if he indicates that he has
read and understood the plea agreement, which contains an “explicit,
unambiguous waiver of appeal.” McKinney, 406 F.3d at 746. District courts
must ascertain that defendants understand provisions in plea agreements
waiving the right to appeal. FED. R. CRIM. P. 11(b)(1)(N).
The record reflects that the magistrate judge explained the appeal waiver
provision to Pitts at the change of plea hearing. Pitts indicated that he had read
the plea agreement and that he understood the waiver of appellate rights. In
view of the foregoing, Pitts’s appeal is barred by the waiver provision of the plea
agreement. See Bond, 414 F.3d at 544.
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