United States v. Deon Bonner , 713 F. App'x 342 ( 2018 )


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  •      Case: 17-10249      Document: 00514360372         Page: 1    Date Filed: 02/23/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 17-10249
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    February 23, 2018
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    DEON BONNER, also known as “Spanish Fly”,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:16-CR-245-4
    Before KING, ELROD, and HIGGINSON, Circuit Judges.
    PER CURIAM: *
    Deon Bonner pleaded guilty, pursuant to a written agreement, to con-
    spiracy to commit sex trafficking in violation of 18 U.S.C. § 1594(c). The district
    court imposed a within-Guidelines sentence of 360 months’ imprisonment.
    Though Bonner waived most of his appeal rights, he preserved three: the rights
    “(a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10249     Document: 00514360372     Page: 2   Date Filed: 02/23/2018
    No. 17-10249
    punishment, or (ii) an arithmetic error at sentencing, (b) to challenge the vol-
    untariness of his plea of guilty or this waiver, and (c) to bring a claim of inef-
    fective assistance of counsel.” This appeal, however, focuses primarily on a
    Guidelines question—whether the district court correctly applied U.S.S.G §§
    2G1.3, 2X1.1(a), and 3B1.2. In urging us to consider his Guidelines arguments,
    Bonner necessarily attacks the validity of his plea and waiver on several fronts.
    See United States v. Carreon-Ibarra, 
    673 F.3d 358
    , 362 n.3 (5th Cir. 2012) (“[A]
    waiver-of-appeal provision . . . cannot be enforced to bar a claim that the waiver
    itself—or the plea agreement of which it was a part—was unknowing or invol-
    untary.” (quotation marks omitted)). None of Bonner’s arguments prevails.
    A guilty plea must be voluntary, knowing, and intelligent. United States
    v. Washington, 
    480 F.3d 309
    , 315 (5th Cir. 2007). Bonner must have had notice
    of the charges leveled against him and understood the constitutional protec-
    tions he would waive by pleading guilty. Id.; accord Fed. R. Crim. P. 11. Simi-
    larly, an appeal waiver is valid if it is “knowing and voluntary” and “applies to
    the circumstances at hand, based on the plain language of the [plea] agree-
    ment.” United States v. Scallon, 
    683 F.3d 680
    , 682 (5th Cir. 2012) (quotation
    mark omitted). A waiver is knowing and voluntary where the record indicates
    that the defendant read and understood the plea agreement, was aware of the
    right to appeal, understood that he was giving up that right, and raised no
    question concerning the waiver. United States v. Portillo, 
    18 F.3d 290
    , 292–93
    (5th Cir. 1994). “If the district court accurately explains the terms and conse-
    quences of the waiver of appeal and the defendant states on the record that he
    understands them, the defendant's later contention that he did not really un-
    derstand will not invalidate the waiver.” United States v. Jacobs, 
    635 F.3d 778
    ,
    781 (5th Cir. 2011). Our review here is de novo. See 
    Washington, 480 F.3d at 315
    ; 
    Scallon, 683 F.3d at 682
    .
    2
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    No. 17-10249
    The record confirms that Bonner read and understood his plea agree-
    ment, comprehended the nature of the § 1594(c) charge and maximum punish-
    ment, was aware of his right to appeal, and understood that he was giving up
    that right. See 
    Portillo, 18 F.3d at 292
    –93; 
    Washington, 480 F.3d at 315
    –16.
    Indeed, his plea agreement stated that the maximum sentence he could receive
    was “any term of years of imprisonment up to life.” As for his specific sentence,
    Bonner verified that he “reviewed the Guidelines with his attorney” and un-
    derstood that “no one” could at rearraignment “predict with certainty the out-
    come of the Court’s consideration of the Guidelines in this case.” Bonner agreed
    that he would “not be allowed to withdraw his plea” even if his sentence were
    “higher than expected.” He further confirmed that “[t]here ha[d] been no guar-
    antees or promises from anyone as to what sentence the Court will impose.”
    Then, in open court, Bonner stated that he understood the indictment and el-
    ements of the offense, the trial rights he was waiving, his plea agreement gen-
    erally, and the appeal waiver specifically. Both the plea and waiver are valid.
    Nevertheless, Bonner argues that his plea and waiver were unknowing
    and involuntary because the indictment charged him in Count 1 with “Con-
    spiracy to Commit Sex Trafficking of Children (Violation of 18 U.S.C. § 1594(c)
    (18 U.S.C. § 1591(a)(1) and (a)(2)),” but the factual resume “reflects a plea of
    guilty to Count One of the Indictment: Conspiracy to Commit Sex Trafficking
    of Children, 18 U.S.C. § 1594(c) (18 U.S.C. § 1591(a) and (b)(2)[)].” This puta-
    tive inconsistency, Bonner contends, “deprive[d him] of notice of the charges
    against him because 18 U.S.C. § 1591(b)(2) provides for a statutorily mandated
    minimum term of imprisonment of ten years, whereas 18 U.S.C. § 1594(c) does
    not have a mandated minimum term of years.” But the record reflects that
    Bonner pleaded guilty to a violation of 18 U.S.C. § 1594(c) and that he was
    3
    Case: 17-10249        Document: 00514360372           Page: 4      Date Filed: 02/23/2018
    No. 17-10249
    correctly subject to a term of up to life in prison; he was not, as he alleges,
    subjected to a ten-year mandatory minimum sentence under § 1591(b)(2). 1
    Bonner also contends, without citation to authority, that the handwrit-
    ten changes he insisted on appearing in the stipulated facts render his plea
    void because the amended sentences are “nonsensical.” We disagree. Bonner’s
    proposed (and accepted) revisions simply clarify who his victims were. The
    edits do not void the plea.
    Last, Bonner maintains that his plea agreement is invalid because he
    did not receive consideration and he did not understand how the Guidelines
    would apply to his case. These arguments also fail. Even were consideration
    necessary to support a plea, the government provided it by dismissing Count
    10 (a substantive § 1591 charge) and pledging not to bring any further charges
    against Bonner from the conduct undergirding his conviction. Nor do we find
    merit in Bonner’s claim regarding his misunderstanding of the applicable
    Guidelines. He acknowledged, both in his plea agreement and at rearraign-
    ment, that his plea and agreement were not predicated upon any Guidelines
    estimate and that he understood the maximum applicable penalties. Cf. United
    States v. Smallwood, 
    920 F.2d 1231
    , 1239 (5th Cir. 1991) (“Plea bargains do
    not alter how the Guidelines will apply.”); see also Fed. R. Crim. P. 11(b)(1). He
    instead averred that he was “waiving [of his] right to appeal or otherwise chal-
    lenge [his] sentence,” even though “any discussion concerning the Guidelines”
    before sentencing was only “an estimate,” not “a promise as to what those
    Guidelines will be.”
    1 Section 1591(b) does not itself create an offense; it instead identifies the two different
    punishment schemes for a violation of § 1591(a). Subsection (b)(2) is the less severe one. Bon-
    ner’s arguments regarding § 1591(b) actually address the district court’s Guidelines calcula-
    tions—a contention that the appeal waiver forecloses.
    4
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    No. 17-10249
    We dismiss Bonner’s claims of Guidelines error because they fall within
    the scope of a valid appeal waiver. See United States v. Story, 
    439 F.3d 226
    ,
    230 n.5 (5th Cir. 2006); United States v. Bond, 
    414 F.3d 542
    , 546 (5th Cir.
    2005).
    AFFIRMED IN PART; DISMISSED IN PART.
    5
    

Document Info

Docket Number: 17-10249 Summary Calendar

Citation Numbers: 713 F. App'x 342

Judges: King, Elrod, Higginson

Filed Date: 2/23/2018

Precedential Status: Non-Precedential

Modified Date: 11/6/2024