United States v. Jerome Wellington ( 2015 )

Case: 14-60022 Document: 00513083920 Page: 1 Date Filed: 06/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60022 FILED
Summary Calendar June 18, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEROME GORDON WELLINGTON,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CR-104
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
In 2013, Jerome Gordon Wellington pleaded guilty, pursuant to a written
plea agreement, to one count of money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i). The district court imposed a sentence of 188 months in
prison to be followed by three years of supervised release, with the sentence to
run concurrently with the total 151-month sentence imposed in 2009 for guilty-
plea convictions for drug-related offenses. On appeal, Wellington challenges
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60022 Document: 00513083920 Page: 2 Date Filed: 06/18/2015
No. 14-60022
his money laundering conviction and sentence, asserting that the Government
breached the terms of the plea agreement in the drug cases by indicting him
for money laundering.
Invoking the waiver of appeal provision in Wellington’s plea agreement
in the money laundering case, the Government moves for dismissal of
Wellington’s appeal, or, in the alternative, for summary affirmance. The
government contends that the waiver is valid and enforceable and precludes
Wellington from challenging his conviction or sentence for any reason.
Because the summary affirmance procedure is generally reserved for cases in
which the parties concede that the issues are foreclosed by circuit precedent,
see, e.g., United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010), the
Government’s motion for summary affirmance is DENIED.
We reach a different result, however, on the motion to dismiss which
seeks to enforce the appellate waiver. The validity of an appeal waiver is a
question of law that we review de novo. See United States v. Burns, 433 F.3d
442, 445 (5th Cir. 2005). The record indicates that Wellington read and
understood the plea agreement, which contained an “explicit, unambiguous
waiver of appeal.” United States v. McKinney, 406 F.3d 744, 746 & n.2 (5th
Cir. 2005). Thus, Wellington’s appeal waiver was knowing and voluntary. See
United States v. Higgins, 739 F.3d 733, 736 (5th Cir.), cert. denied, 134 S. Ct.
2319 (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). Wellington does not allege that the
Government breached the plea agreement in this case, and an examination of
the record reveals that the Government fulfilled its obligations under the plea
agreement. Therefore, the appeal waiver provision is valid and binding and
2
Case: 14-60022 Document: 00513083920 Page: 3 Date Filed: 06/18/2015
No. 14-60022
bars the appeal of Wellington’s money laundering conviction or sentence for
any reason. See Higgins, 739 F.3d at 738-39. 1
Accordingly, IT IS ORDERED that the Government’s motion for
dismissal is GRANTED, and the appeal is DISMISSED.
1It is worth noting that the plea agreement in the earlier drug case, which is the one
Wellington contends the government breached, included a government agreement to not seek
"further criminal prosecution [of Welllington] for any acts or conduct disclosed by
[Wellington] . . . arising out of any event covered by the indictment . . . if [Wellington]
voluntarily, truthfully, and completely disclose[d] all information and knowledge" he had. At
the sentencing in this case at which Wellington raised the issue concerning his prior plea,
the government vigorously disputed that it had breached this agreement. Its position was
that Wellington refused to talk about his finances during his debriefing because he was aware
of an ongoing money laundering investigation for which he was not the source.
3