United States v. Watts ( 2023 )

Case: 22-60608 Document: 00516918980 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 3, 2023
No. 22-60608 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Tyrese V. Watts,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:21-CR-22-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Pursuant to a written plea agreement, Tyrese V. Watts pleaded guilty
to one count of possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1), and he was sentenced to 120 months of imprisonment and three
years of supervised release. On appeal, Watts contends that his trial counsel
_____________________
*
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should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
Case: 22-60608 Document: 00516918980 Page: 2 Date Filed: 10/03/2023
No. 22-60608
provided ineffective assistance and that his sentence was substantively
unreasonable.
In his plea agreement, Watts waived the right to appeal or challenge
his conviction and sentence “on any ground whatsoever,” only reserving the
right to bring a claim of ineffective assistance of counsel. 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). Here, the record evinces that
Watts knowingly and voluntarily waived his right to appeal. See United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Moreover, affording the language
of the appeal waiver its plain meaning, it undoubtedly applies to Watts’s
challenge to the reasonableness of his sentence because it applies to all claims
other than ineffective assistance of counsel. See id.Watts’s appeal waiver does not bar his ineffective assistance of
counsel claims under its express terms. To prevail on a claim of ineffective
assistance of counsel, a criminal defendant must show that his “counsel’s
performance was deficient” and that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Watts
contends that his trial counsel rendered ineffective assistance by failing to
challenge the constitutionality of § 922(g)(1) based on New York State Rifle
& Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129-30 (2022). Further, he claims
that his trial counsel failed to investigate the facts underlying the case and to
introduce evidence at his sentencing hearing to challenge the base offense
level assigned in his presentence report.
Generally, claims of “ineffective assistance of counsel should not be
litigated on direct appeal, unless they were previously presented to the trial
court.” United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (internal
quotation marks and citation omitted). Here, the record does not
substantially detail trial counsel’s conduct. See United States v. Bounds,
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No. 22-60608
943 F.2d 541, 544 (5th Cir. 1991). There is no mention of the
constitutionality of § 922(g), much less counsel’s knowledge of the recent
decision in Bruen, any research conducted on the topic, or any legal
conclusions reached by counsel. Further, counsel did not present any
evidence regarding his efforts to investigate the facts or to introduce evidence
at the sentencing hearing. Watts did not file any post-trial motions contesting
his counsel’s actions. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir.
1995). Finally, Watts’s claims are not based on purely legal issues but rather
on counsel’s actions or failures to act. See United States v. Diehl, 775 F.3d
714, 719 (5th Cir. 2015). Therefore, we decline to consider Watts’s claims of
ineffective assistance of counsel at this time. See Isgar, 739 F.3d at 841.
Given the foregoing, the appeal is DISMISSED, but without
prejudice to Watts’s right to raise his claims of ineffective assistance of
counsel on collateral review. See, e.g., United States v. Kelly, 915 F.3d 344,
352 (5th Cir. 2019).
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