United States v. Lorenzo Hickman ( 2019 )

Case: 19-60186 Document: 00515251804 Page: 1 Date Filed: 12/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-60186 FILED
Summary Calendar December 30, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LORENZO DYRELL HICKMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CR-89-2
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Lorenzo Dyrell Hickman pleaded guilty, pursuant to a written plea
agreement, to conspiracy to possess with intent to distribute 50 grams or more
of methamphetamine, and the district court sentenced him to 270 months in
prison to be followed by five years of supervised release. On appeal, Hickman
challenges his sentence, arguing that the district court committed procedural
and substantive errors by treating all of his methamphetamine as actual
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-60186 Document: 00515251804 Page: 2 Date Filed: 12/30/2019
No. 19-60186
methamphetamine and by applying an upward variance. He further argues
that to the extent plain error might apply to his challenges, defense counsel
committed ineffective assistance in failing to raise specific objections.
Invoking the waiver of appeal provision in Hickman’s plea agreement,
the Government moves for dismissal of the appeal or, in the alternative, for
summary affirmance, contending that the waiver is valid and enforceable and
precludes Hickman from challenging his conviction or sentence except on the
ground of ineffective assistance of counsel. Hickman opposes the
Government’s motion, arguing that counsel was constitutionally ineffective in
failing to ensure that he understood the appeal waiver provision of the plea
agreement and that appeal waivers should not be enforced because they are
inherently unfair. The motion for summary affirmance is DENIED because
the summary affirmance procedure is generally reserved for cases in which the
parties concede that the issues are foreclosed by circuit precedent. Cf. United
States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010) (noting the denial of
summary affirmance where an issue was not foreclosed).
The validity of an appeal waiver is a question of law that we review de
novo. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). The record
indicates that Hickman read and understood the plea agreement, which
contained an “explicit, unambiguous waiver of appeal.” United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Thus, Hickman’s appeal waiver
was knowing and voluntary. See United States v. Higgins, 739 F.3d 733, 736
(5th Cir. 2014); FED. R. CRIM. P. 11(b)(1)(N). Accordingly, he is bound by it
unless the Government breached the plea agreement. See United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Hickman does not allege that the
Government breached the plea agreement. Therefore, the appeal waiver
provision is valid and binding and bars Hickman’s challenges to his sentence.
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No. 19-60186
See Higgins, 739 F.3d at 736-37. The record is not sufficiently developed to
allow us to make a fair evaluation of Hickman’s claims of ineffective assistance
of counsel. We therefore decline to consider those claims without prejudice to
collateral review under 28 U.S.C. § 2255. See United States v. Isgar, 739 F.3d
829, 841 (5th Cir. 2014).
Accordingly, IT IS ORDERED that the Government’s motion for
dismissal is GRANTED, and the appeal is DISMISSED.
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