United States v. McCalister ( 2021 )

Case: 20-10642 Document: 00515900756 Page: 1 Date Filed: 06/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 15, 2021
No. 20-10642
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ronald David McCalister, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:20-CR-59-1
Before King, Smith, and Haynes, Circuit Judges.
Per Curiam:*
Ronald McCalister, Jr., pleaded guilty of enticement of a child in viola-
tion of 18 U.S.C. § 2422(b), that is, using a means of interstate commerce to
attempt to persuade, induce, and entice a minor to engage in sexual activity
for which any person can be criminally charged. The district court sentenced
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-10642 Document: 00515900756 Page: 2 Date Filed: 06/15/2021
No. 20-10642
McCalister within the guidelines range to 235 months of imprisonment and
15 years of supervised release.
For the first time, McCalister contends that the district court plainly
erred by applying U.S.S.G. § 4B1.5 to enhance his sentence because his prior
Texas conviction did not qualify as a “sex offense conviction” within the
meaning of § 4B1.5. The government argues that the appeal is barred by the
appeal waiver in the plea agreement and that the appeal should be dismissed
on that basis.
We review de novo whether an appeal waiver bars an appeal. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). We consider “(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).
McCalister does not maintain that his appeal waiver was not knowing
and voluntary or that it does not apply to his guidelines challenge. Rather, he
avers that we should adopt a miscarriage-of-justice exception and address his
argument on the merits.
We have repeatedly declined to adopt, or to reject, a miscarriage-of-
justice exception to the enforcement of an appeal waiver. See United States
v. Barnes, 953 F.3d 383, 389 (5th Cir.), cert. denied, 141 S. Ct. 438 (2020). We
need not resolve the issue here, because McCalister fails to show that his
challenge to the § 4B1.5 enhancement should be allowed to proceed even if
such an exception existed.
Accordingly, the motion is GRANTED, and the appeal is
DISMISSED.
2