United States v. Wills

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50333
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARRY DAN WILLS,
also known as Gary Wills,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CR-64-6
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October 15, 2001
Before JOLLY, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Relying on Apprendi v. New Jersey**, Garry Dan Wills argues
that the failure to allege a drug quantity in the superseding
information charging him with possession with intent to
distribute methamphetamine should have resulted in his being
sentenced based only on the quantity of drugs stated in the
factual basis supporting his guilty plea.
Wills’ 48-month sentence and three-year term of supervised
release did not exceed the maximum statutory penalty for an
*
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this opinion should not be published and is not precedent except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.
**
530 U.S. 466 (2000).
No. 01-50333
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offense involving less than 5 grams of methamphetamine, and,
thus, Wills is not entitled to have the case dismissed or to be
resentenced. See 21 U.S.C. § 841(b)(1)(C); United States v.
Doggett, 230 F.3d 160, 164-66 (5th Cir. 2000), cert. denied, 121
S. Ct. 1152 (2001).
Wills argues that the information in the presentence report
did not have the indicia of reliability necessary to support the
sentence imposed by the district court. The Government moves to
dismiss Wills’ challenge to his sentence, arguing that he waived
his right to appeal his sentence in his plea agreement.
Before accepting Wills’ guilty plea, the district court
addressed Wills and determined that he understood and accepted
the waiver-of-appeal provision in his plea agreement. See Fed.
R. Crim. P. 11(c)(6); United States v. Robinson, 187 F.3d 516,
518 (5th Cir. 1999). Because the record reflects that Wills
knowingly and voluntarily waived his right to appeal his
sentence, he is bound by the waiver and cannot challenge his
sentence on appeal. See United States v. Melancon, 972 F.2d 566,
567 (5th Cir. 1992). The Government’s motion to dismiss this
appeal as it relates to Wills’ challenges to his sentence is
GRANTED.
Wills’ argument that the Government breached the plea
agreement by failing to file a motion for downward departure is
without merit because the Government retained the discretion to
file the motion, and Wills has not alleged that the failure to
file the motion was the result of an unconstitutional motive on
No. 01-50333
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the Government’s part. See Wade v. United States, 504 U.S. 181,
185-86 (1992). Wills’ conviction and sentence are AFFIRMED.