United States v. Tony Templet , 431 F. App'x 270 ( 2011 )

Case: 10-31015 Document: 00511520014 Page: 1 Date Filed: 06/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2011
No. 10-31015
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TONY TEMPLET,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-153-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Tony Templet appeals his guilty plea conviction for receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2). He argues that the
indictment failed to charge him with an offense under § 2252(a)(2) because it did
not specifically allege that he knew that the production of the visual depictions
he received involved the use of a minor engaging in sexually explicit conduct.
He does not contend that this guilty plea was involuntary or unknowing.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-31015 Document: 00511520014 Page: 2 Date Filed: 06/24/2011
No. 10-31015
The Government moves to supplement the record on appeal with a copy
of its sentencing memorandum, and Templet does not oppose the motion. See
FED. R. APP. P. 10(e)(2). We grant the motion.
The Government argues that the provision in Templet’s plea agreement
waiving his right to appeal bars his claim, but the written appeal waiver only
refers to Templet’s right to appeal his sentence. Accordingly, his challenge to the
sufficiency of the indictment is not barred by that specific provision. See United
States v. Harris, 434 F.3d 767, 770-71 (5th Cir. 2005) (holding that we construe
appeal waiver provisions narrowly and in favor of the defendant). Nevertheless,
by pleading guilty, Templet waived his right to challenge such nonjurisdictional
defects in the indictment. See United States v. Daughenbaugh, 549 F.3d 1010,
1011-12 (5th Cir. 2008).
MOTION GRANTED; AFFIRMED.
2