United States v. Kerry De Cay , 359 F. App'x 514 ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2010
No. 09-30337
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
KERRY DE CAY,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CR-186-1
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kerry De Cay pled guilty to conspiracy to commit mail fraud, mail fraud,
and obstruction of justice. After not having timely appealed, De Cay filed a
motion to set aside the judgment. See 28 U.S.C. § 2255. The district court
essentially vacated, then reinstated the judgment of conviction, in order to allow
De Cay to file an out-of-time direct appeal. We DISMISS the appeal.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-30337
De Cay seeks to raise substantive challenges to the district court’s
application of the bribery guideline, U.S.S.G. § 2C1.1, and the district court’s
determination that he was responsible for a loss greater than $1 million. The
Government argues that De Cay’s appeal is barred by the appeal waiver in his
plea agreement. Citing United States v. Robinson, 187 F.3d 516 (5th Cir. 1999)
and United States v. Baty, 980 F.2d 977 (5th Cir. 1992), De Cay maintains that
the appeal waiver is not enforceable because it was not knowing and voluntary.
De Cay claims he did not understand the meaning of the exception to the appeal
waiver for punishment in excess of the statutory maximum. He asserts that his
trial counsel incorrectly told him that he could appeal a sentence in excess of the
guidelines sentence range and that the explanation provided by his trial counsel
would allow an appeal challenging the district court’s guidelines sentence range
calculations. Additionally, De Cay argues for the first time on appeal that the
district court plainly erred by violating the obligation to explain fully the terms
of the appeal waiver to him. See F ED. R. C RIM. P. 11(b)(1)(N).
A defendant may waive his right to appeal as part of a valid plea
agreement if the waiver is knowing and voluntary. United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). To determine whether an appeal of a sentence
is barred by an appeal waiver provision in a plea agreement, we conduct a
two-step inquiry: (1) whether the waiver was knowing and voluntary and
(2) whether the waiver applies to the circumstances at hand, based on the plain
language of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005). We review the validity of an appeal waiver de novo. United States v.
Burns, 433 F.3d 442, 445 (5th Cir. 2005).
At rearraignment, De Cay stated under oath that he had read and signed
the plea agreement. The district court explained to De Cay that the waiver of
appeal provision provided that De Cay could not appeal unless the district court
imposed punishment in excess of the statutory maximum. De Cay averred that
he understood the appeal waiver.
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No. 09-30337
Contrary to De Cay’s assertion, the appeal waiver was explicit and
unambiguous. While De Cay maintains that the phrase “statutory maximum
punishment” is an ambiguous legal term of art, the phrase used in an exception
to an appeal waiver has a “natural and ordinary meaning of the upper limit of
punishment that Congress has legislatively specified for violations of a statute.”
United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (internal quotation
marks and citation omitted). The district court correctly informed De Cay of the
nature of the appeal waiver.
De Cay’s reliance upon Robinson and Baty is misplaced. In Robinson, the
district court did not explain the terms of the appeal waiver to the defendant,
and it did not ask the defendant whether he understood the terms of the appeal
waiver or the plea agreement. 187 F.3d at 517-18. Consequently, this court held
that the appeal waiver was not knowing and voluntary. Id. at 518. In Baty, the
defendant asked the district court what the appeal waiver provision meant on
multiple occasions during rearraignment, but she was not given a satisfactory
explanation. 980 F.2d at 978-79. Thus, this court held that the appeal waiver
was not knowing and voluntary. Id. at 979. In the present case, however, the
district court admonished De Cay regarding the terms of the appeal waiver, and
De Cay stated that he understood. Accordingly, both Robinson and Baty are
distinguishable.
The district court informed De Cay of the terms of the appeal waiver and
De Cay stated that he understood them; therefore, the district court did not Rule
11. See United States v. Gonzalez, 259 F.3d 355, 358 (5th Cir. 2001). Moreover,
as DeCay stated that he understood the terms of the appeal waiver after they
were explained to him by the district court, the appeal waiver was both knowing
and voluntary, and it is, therefore, enforceable. See McKinney, 406 F.3d at 746.
The substantive claims De Cay seeks to raise do not fall within the exception to
the appeal waiver for claims challenging punishment in excess of the statutory
maximum.
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No. 09-30337
The appeal waiver bars De Cay’s appeal. See Bond, 414 F.3d at 544.
De Cay argues that even if the appeal waiver is enforceable, this court
should decline to enforce it under a miscarriage of justice exception. He
acknowledges that this court has not created such an exception to the
application of appeal waivers, but he requests that we adopt the position of other
circuits and create such an exception. De Cay maintains that the district court’s
errors at sentencing amounted to a miscarriage of justice.
This court routinely has ruled that issues waived in a valid, enforceable
appeal waiver need not be considered. See, e.g., Bond, 414 F.3d at 546;
McKinney, 406 F.3d at 747. In the present case, we need not determine whether
we should adopt a miscarriage of justice exception to the enforcement of appeal
waivers because De Cay’s substantive claims are relatively standard challenges
to the district court’s guidelines sentence range calculation that would not fall
within a miscarriage of justice exception. See United States v. Andis, 333 F.3d
886, 891-92 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557, 562-63 (3d
Cir. 2001). De Cay “is bound to his obligations under the plea agreement,” and
the appeal waiver bars his appeal. McKinney, 406 F.3d at 747.
DISMISSED.
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