United States v. Bryan Theriot , 536 F. App'x 506 ( 2013 )

Case: 12-20683 Document: 00512316429 Page: 1 Date Filed: 07/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 22, 2013
No. 12-20683
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRYAN ANDREW THERIOT,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-470-2
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Bryan Andrew Theriot appeals the sentence imposed following his guilty
plea conviction for conspiring to maintain a place for the purposes of
manufacturing controlled substances. He was sentenced to eighty-seven
months of imprisonment and three years of supervised release. He contends
that the district court unconstitutionally relied on facts not proved beyond a
reasonable doubt to increase his sentence.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-20683 Document: 00512316429 Page: 2 Date Filed: 07/22/2013
No. 12-20683
The Government moves to dismiss the appeal as barred by Theriot’s
appeal waiver. Theriot acknowledges that he “signed a plea agreement that
included a waiver of his right to appeal his sentence.” He also concedes that
“the enforceability of waiving a his right to appeal has been foreclosed by this
court, but includes it for a possible writ of certiorari to the United States
Supreme where the issue has yet to be determined.” However, he nonetheless
argues that the waiver is invalid because “[u]nless the defendant is clairvoyant,
it is literally impossible to waive the right to appeal the sentence knowingly
and intelligently before the sentence has actually been imposed.”
Theriot’s waiver challenge is unavailing. See United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992) (“The Supreme Court has repeatedly
recognized that a defendant may waive constitutional rights as part of a plea
bargaining agreement.”). Theriot knowingly and voluntarily waived his right
to appeal his sentence. See United States v. Portillo, 18 F.3d 290, 292 (5th Cir.
1994). There is no relevant exception to the appeal waiver. The Government
complied with its obligations in the plea agreement and has invoked the appeal
waiver to bar Theriot’s appeal. Therefore, Theriot is bound by the appeal
waiver, which bars the instant appeal. See United States v. Story, 439 F.3d 226,
231 (5th Cir. 2006); United States v. Keresztury, 293 F.3d 750, 755-57 (5th Cir.
2002).
The judgment of the district court is AFFIRMED. The Government’s
motion to dismiss the appeal is DENIED, and the Government’s alternative
motion for an extension of time to file a brief is DENIED as moot.
2