United States v. Ndem Oduu

Case: 12-30943 Document: 00512373055 Page: 1 Date Filed: 09/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 13, 2013
No. 12-30943
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
NDEM ODUU,
Defendant - Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CR-127-1
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ndem Oduu, proceeding pro se and in forma pauperis, appeals his
conviction and sentence following the entry of his guilty plea to possession of 15
or more unauthorized access devices. He presents two issues. Each fails.
First, he maintains the district court interfered impermissibly with the
plea negotiations, causing his plea to be invalid. Federal Rule of Criminal
Procedure 11(c) prohibits a district court from participating in, or interfering
with, the plea-negotiation process. FED. R. CRIM. P. 11(c)(1).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30943
Because Oduu did not object on this basis in district court, this issue is
reviewed only for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
Under that limited standard, Oduu must show a clear or obvious forfeited error
that affected his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). To establish that any error in accepting his guilty plea affected his
substantial rights, Oduu “must show a reasonable probability that, but for the
error, he would not have entered the plea”. United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). Even if Oduu shows reversible plain error, we will
exercise our discretion to remedy the error only if it “seriously affects the
fairness, integrity or reputation of judicial proceedings”. Id. (internal quotation
marks and citation omitted).
Oduu’s statements at the re-arraignment hearing with respect to his
competence and the voluntariness of his plea carry a strong presumption of
verity. See United States. v. Hodges, 369 F. App’x 586, 587 (5th Cir. 2010) (per
curiam) (unpublished) (citing United States v. Adam, 296 F.3d 327, 333 (5th Cir.
2002)). The record does not show the court interfered with the plea negotiations.
Likewise, the re-arraignment hearing transcript shows Oduu’s guilty plea was
intelligent and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
In short, he has not shown reversible plain error.
For the other issue, Oduu contends the court erred by applying the
adjustment for obstruction of justice to his sentence. The Government asserts
that review of this issue is barred due to the appeal-waiver provision in Oduu’s
written plea agreement.
To determine whether an appeal is barred by an appeal waiver provision
in a plea agreement, our court conducts 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) (citing United States v.
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No. 12-30943
McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005)). Whether an appeal waiver is
valid is a question of law, reviewed de novo. United States v. Burns, 433, F.3d
442, 445 (5th Cir. 2005) (citing United States v. Melancon, 972 F.2d 566, 567 (5th
Cir. 1992)).
Because Oduu demonstrated at his re-arraignment hearing that he
understood the plea agreement, including the appeal waiver, and raised no
question regarding that provision, the waiver is valid. See United States v.
McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005) (“To be valid, a defendant’s
waiver of his right to appeal must be informed and voluntary.”) (quoting United
States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994)). Whether Oduu’s waiver
applies to the circumstances at hand is based on the plain language of the plea
agreement. See McKinney, 406 F.3d at 746. Oduu waived his right to appeal on
all grounds other than those exceptions contained in the waiver provision.
Oduu’s claim is barred because his challenge to the obstruction-of-justice
adjustment does not fall within any exception contained in the waiver. See id.
at 746-47.
AFFIRMED.
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