United States v. Buckley ( 2022 )

Case: 21-60899 Document: 00516355148 Page: 1 Date Filed: 06/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 13, 2022
No. 21-60899
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Enoch Buckley, III,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:20-CR-44-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Enoch Buckley, III, pleaded guilty, per a plea agreement, of possession
of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He
was sentenced, above the advisory guideline range, to 120 months of impris-
onment. Buckley waived his right to appeal, but he reserved the right to
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60899 Document: 00516355148 Page: 2 Date Filed: 06/13/2022
No. 21-60899
appeal a claim of ineffective assistance of counsel. On appeal, he maintains
that his above-guidelines sentence was substantively unreasonable. Instead
of a brief, the government has filed an opposed motion for dismissal, seeking
enforcement of the appeal waiver, or, in the alternative, summary affirmance.
A defendant may waive the statutory right to appeal in a valid plea
agreement. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
“This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). 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).
The record demonstrates that Buckley knowingly and voluntarily
waived his right to appeal, and the appellate waiver applies in this circum-
stance. See McKinney, 406 F.3d at 746; United States v. Portillo, 18 F.3d 290,
292 (5th Cir. 1994); United States v. Melancon, 972 F.2d 566, 567–68 (5th Cir.
1992).
Accordingly, the motion to dismiss is GRANTED, and the appeal is
DISMISSED. The government’s alternative motion for summary affirm-
ance is DENIED as unnecessary.
2