United States v. Boyet

Case: 21-30690 Document: 00516535337 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 4, 2022
No. 21-30690 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jason Boyet,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CR-51-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Jason Boyet pled guilty pursuant to a written plea agreement to one
count of distributing child pornography, in violation of 18 U.S.C.
§ 2252(a)(2). He was sentenced at the low end of the Guidelines range to
210 months of imprisonment and five years of supervised release. He
*
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opinion should not be published and is not precedent except under the limited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: 21-30690 Document: 00516535337 Page: 2 Date Filed: 11/04/2022
challenges his sentence on appeal, arguing that the district court failed to
recognize its authority to depart from the Sentencing Guidelines based on
policy disagreements and erred by applying a five-level enhancement under
U.S.S.G. § 2G2.2(b)(3)(B). He also argues the written judgment broadens
and therefore conflicts with the oral pronouncement of a special condition of
supervised release and so must be reformed.
The government has invoked the appeal waiver, arguing that the
waiver is knowing and voluntary and bars the guidelines challenges raised on
appeal. The government agrees, however, that the written judgment
conflicts with the oral pronouncement of sentence and does not seek to
enforce the appeal waiver as to this issue. See United States v. Story, 439 F.3d
226, 230–31 & n.5 (5th Cir. 2006).
Whether an appeal waiver bars an appeal is a question we review de
novo. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). Here, we agree
the appeal waiver bars Boyet’s claim that the district court failed to recognize
its authority to depart from the Guidelines and erred by applying
Section 2G2.2(b)(3)(B). The record demonstrates that “the waiver was
knowing and voluntary and . . . 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). Because there is no argument that Boyet’s 210-month-
sentence exceeds the 20-year statutory maximum or that trial counsel
rendered ineffective assistance, the two exceptions to the waiver do not
apply. See United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005).
Moreover, although Boyet argues the appeal waiver is inherently unknowing
because he could not have possibly known of a sentencing error when he
entered into the plea agreement, he concedes that argument is foreclosed and
raises it to preserve it for further review. See United States v. Barnes, 953 F.3d
383, 386–87 (5th Cir. 2020); United States v. Burns, 433 F.3d 442, 449–50
(5th Cir. 2005).
Case: 21-30690 Document: 00516535337 Page: 3 Date Filed: 11/04/2022
With respect to the challenged condition of supervised release, the
district court pronounced at sentencing, as a special condition, that Boyet
“shall not cohabitate with anyone who has children under the age of 18,” but
the written judgment, in special condition number 9, states Boyet “shall not
date or cohabitate with anyone who has children under the age of 18.” The
condition that Boyet not date anyone who has children under the age of 18
was not pronounced by the district court or set forth in the presentence
report and, therefore, Boyet had no opportunity to object to the condition.
See United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020); United States
v. Diggles, 957 F.3d 551, 560 (5th Cir. 2020) (en banc). Moreover, by including
the additional prohibition against dating someone with children under the age
of 18, the written judgment imposes a more burdensome and broader
condition than the one orally pronounced. Accordingly, the written
judgment conflicts with the oral pronouncement of sentence and must be
amended. See United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006); see
also United States v. Tang, 718 F.3d 476, 486–87 (5th Cir. 2013) (finding
conflict where oral pronouncement prohibited defendant from cohabitating
with anyone with children under the age of 18 while written judgment
prohibited both cohabitation with and dating such an individual).
Boyet’s claims that the district court failed to recognize its authority
to depart from the Guidelines based on policy disagreements and erred by
applying an enhancement under Section 2G2.2(b)(3)(B) are DISMISSED
as barred by the valid appeal waiver. However, we REMAND to the district
court so the written judgment may be amended to conform with the oral
pronouncement of sentence as it pertains to the special condition of
supervised release identified herein.