United States v. Wallace Haynes, III ( 2012 )

REVISED March 28, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 11-60096
FILED
March 26, 2012
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WALLACE HAYNES, III, also known as Roots,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:07-CR-104-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Wallace Haynes, III, was convicted of one count of
possessing less than five grams of cocaine base with intent to distribute and is
currently serving a sentence of 90 months in prison to be followed by a three-
year term of supervised release. In this out-of-time direct appeal, Haynes claims
that his counsel rendered ineffective assistance by failing to object to the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 11-60096
presentence report and to challenge his base offense level, his criminal history,
and the amount of drugs for which he was held responsible.
Although not addressed by either party, we note that Haynes’s notice of
appeal was “both late and premature” because the district court did not reenter
his judgment of conviction. See United States v. West, 240 F.3d 456, 457-59 (5th
Cir. 2001); see also In re Bradford, 660 F.3d 226, 228 (5th Cir. 2011). The time
limit for filing a criminal appeal, however, is not jurisdictional and can be
waived. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007). As the
government does not raise this issue, it is waived, and we will address the merits
of the appeal.
Haynes has not shown that he is entitled to relief. The government
invokes the waiver of his appellate rights in Haynes’s plea agreement and
contends that this waiver precludes consideration of his claims concerning
counsel’s alleged deficiencies at sentencing. The government is correct. Our
review of the record confirms that Haynes’s waiver was knowing and voluntary.
See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). This review
likewise establishes that the plain language of the plea agreement applies to the
claims he raises. Id.; see also United States v. White, 307 F.3d 336, 343 (5th Cir.
2002). The judgment of the district court is AFFIRMED.
2