USA v. David Reed

Filing

UNPUBLISHED OPINION FILED. [16-10464 Dismissed ] Judge: FPB , Judge: JLD , Judge: ECP Mandate pull date is 05/23/2017 for Appellant David L. Reed [16-10464]

Case: 16-10464

Document: 00513975995

Page: 1

Date Filed: 05/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10464
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 2, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID L. REED,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-481-5
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *

David L. Reed appeals the sentence imposed following his guilty-plea
conviction for conspiracy to unlawfully distribute and dispense hydrocodone.
As part of his plea, Reed waived his right to appeal his conviction and sentence,
although he reserved his right to challenge a sentence exceeding the statutory
maximum, an arithmetic sentencing error, the voluntariness of the plea, or a
claim of ineffective assistance. In his sole argument currently before the court,

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 00513975995

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No. 16-10464
Reed asserts that the district court committed a mathematical error in
imposing a five-year term of supervised release because the guidelines range
was only four years; he concedes that the supervised release term did not
exceed the statutory maximum. The Government argues that this claim is
barred by the waiver provision because it does not constitute an arithmetic
error.
Appeal waivers are reviewed de novo and construed narrowly against
the Government. United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006).
To determine whether an appeal is barred by a waiver provision, we first
consider whether the waiver was knowing and voluntary; if so, we then address
whether, under the plain language of the plea agreement, the waiver applies
to the issues presented. United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005).

Reed does not challenge the voluntariness of his appeal waiver.

Therefore, we address only the second inquiry.
Reed contends that the district court committed an error by imposing a
supervised release term exceeding the guidelines range, as was evidenced by
the court’s failure to indicate that it was imposing an above-guidelines
sentence. He maintains that the term “arithmetic error” does not merely
encompass mathematical computations but may also include errors in
transcription or transposition, and he alleges that the court’s five-year
supervised release term may constitute such an error.
Typically, the terms in a waiver provision are given their “usual and
ordinary meaning.” Id. at 545. The record does not suggest that the parties
intended the term “arithmetic error” to mean anything other than an error
involving a mathematical calculation. See id. at 545-46. No such calculation
was used to determine the supervised release range or imposed term. See
U.S.S.G. § 5D1.2(a)(2), (c). While Reed may be challenging the district court’s

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Document: 00513975995

Page: 3

Date Filed: 05/02/2017

No. 16-10464
imposition of an above-guidelines supervised release term or, possibly, the
court’s failure to give reasons for such a sentence, neither of these assertions
gives rise to an “arithmetic error” that survives the waiver provision in his plea
agreement. Accordingly, the appeal must be dismissed.
APPEAL DISMISSED.

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