United States v. Spell

Case: 21-60878 Document: 00516654048 Page: 1 Date Filed: 02/23/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 23, 2023
No. 21-60878
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
John Wayne Spell,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CR-114
Before Jones, Smith, and Graves, Circuit Judges.
Per Curiam:*
John Wayne Spell pleaded guilty to possession of material involving
the sexual exploitation of minors. The district court sentenced Spell and
ordered restitution. Despite the appellate waiver included in his plea
agreement, Spell now challenges his sentence and the award of restitution.
After due consideration, we DISMISS the appeal.
* This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-60878
FACTS AND PROCEDURAL HISTORY
Spell pleaded guilty to one count of possession of child pornography
in violation of 18 U.S.C. § 2252(a)(4)(B). As part of his written plea
agreement, Spell waived the right to appeal his conviction and sentence, or
the manner in which it was imposed, on any ground. The district court
sentenced Spell to 120 months of imprisonment, 30 years of supervised
release, and imposed a $10,000 assessment pursuant to the Amy, Vicky, and
Andy Child Pornography Victim Assistance Act of 2018. The judgment of
conviction was entered on November 17, 2021. Spell filed a notice of appeal
on November 17, 2021. Following a restitution hearing, the judgment was
amended on January 25, 2022, to include restitution in the amount of
$52,000. Spell filed an amended notice of appeal to include the restitution
issue on February 9, 2022.
On May 16, 2022, the government filed a motion to dismiss or,
alternatively, for summary affirmance on the basis of the appeal waiver. Spell
filed opposition. The motion was carried with the case.
STANDARD OF REVIEW
A defendant may waive his statutory right to appeal pursuant to a valid
plea agreement so long as his waiver is knowing and voluntary. United States
v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). This court reviews de novo
the issue of whether an appeal waiver bars an appeal. United States v. Keele,
755 F.3d 752, 754 (5th Cir. 2014). “To determine the validity of an appeal
waiver, this court conducts a two-step inquiry. Specifically, this court
considers whether the waiver was knowing and voluntary and whether, under
the plain language of the plea agreement, the waiver applies to the
circumstances at issue.” Id. “In determining whether a waiver applies, this
court employs ordinary principles of contract interpretation, construing
waivers narrowly and against the Government.” Id.2
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No. 21-60878
DISCUSSION
Spell asserts that the district court ordered an unreasonably high
sentence and an unreasonable restitution award. Spell concedes that the
relief sought is against Fifth Circuit precedent. However, he asserts that his
arguments raise “important public policy and constitutional concerns that
may warrant en banc consideration by this court and/or consideration by the
United States Supreme Court.” Spell also asserts that the appeal waiver
should not be enforced because he did not know what his sentence would be
when he pleaded guilty. We disagree.
This court recently considered a similar matter in United States v.
Meredith, 52 F.4th 984 (5th Cir. 2022). In that case, Christopher Meredith
attempted to appeal a sentencing enhancement and restitution award after
waiving his right to appeal. This court concluded that Meredith’s waiver
foreclosed his arguments on appeal and dismissed his appeal. Id. at 988.
Meredith waived his right to appeal “on any ground,” including as to any
“monetary penalty or obligation.” Id. at 986. This court also concluded that
the waiver was knowing and voluntary.
Spell agreed to waive his right to appeal the conviction and sentence
in this matter on any ground under 18 U.S.C. § 3742 or “on any ground
whatsoever.” Pursuant to the plea agreement and supplement, Spell also
agreed to make full restitution to all victims. Spell’s agreement did not
include specific language waiving his right to appeal as to any “monetary
penalty or obligation.” See Meredith, 52 F.4th at 986. However, in Keele, this
court concluded that restitution was encompassed by a general waiver such
as the one here. Id., 755 F.3d at 756.
Additionally, this court has already disagreed with Spell’s argument
regarding his uncertainty of sentence at the time he pleaded guilty. See
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United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992) (“uncertainty
of Appellant’s sentence does not render his waiver uninformed.”).
Moreover, the record in this matter supports a conclusion that Spell
knowingly and voluntarily waived his appellate rights. Spell signed a written
provision on the plea agreement and supplement affirming that he had read
the agreement, his attorney had explained it, he understood it, and he had
entered into it voluntarily and knowingly. Before Spell’s plea was accepted,
he testified that he had read the plea agreement and supplement, discussed it
with counsel, and understood it. The district court also went over specific
provisions, including the waiver, and Spell reiterated his voluntary
agreement.
For these reasons, Spell’s appeal is DISMISSED. The
government’s motion to dismiss or, alternatively, for summary affirmance is
DISMISSED as moot.
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