United States v. Rodney Tydus, Jr. , 574 F. App'x 294 ( 2014 )

Case: 13-30072 Document: 00512670570 Page: 1 Date Filed: 06/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30072 FILED
Summary Calendar June 19, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RODNEY TYDUS, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CR-166-1
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Rodney Tydus, Jr., proceeding pro se and in forma pauperis, pleaded
guilty to conspiracy to possess, with the intent to distribute, five kilograms or
more of cocaine hydrochloride and was sentenced inter alia, to the mandatory
minimum sentence of 120 months’ imprisonment. Tydus’ guilty plea was made
pursuant to a plea agreement in which he waived the right to appeal, inter
alia, his conviction and sentence. Tydus contends the district court failed to
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-30072 Document: 00512670570 Page: 2 Date Filed: 06/19/2014
No. 13-30072
comply with Federal Rule of Criminal Procedure 11(b)(1)(N) (requiring district
court to determine defendant understands any provision waiving right to
appeal or collaterally attack sentence). He seeks to invalidate the appeal
waiver, in order to challenge his sentence as in violation of Alleyne v. United
States, 133 S. Ct. 2151 (2013) (holding any fact increasing mandatory-
minimum sentence is element of crime and not sentencing factor). The
Government seeks enforcement of the waiver.
Because Tydus did not object in district court to an alleged Rule
11(b)(1)(N) error, review is for plain error only. See United States v. Oliver,
630 F.3d 397, 411 (5th Cir. 2011). Under that standard, Tydus must show a
clear or obvious forfeited error that affected his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. See id.
Tydus demonstrated at the re-arraignment hearing that he had read and
understood the plea agreement, which included the appeal waiver, and raised
no question regarding that provision; therefore, the waiver is valid. See United
States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005) (“To be valid, a
defendant’s waiver of his right to appeal must be informed and voluntary.”)
(quoting United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994)).
DISMISSED.
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