United States v. Randy Wesson

Case: 16-10909 Document: 00514261531 Page: 1 Date Filed: 12/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10909
Fifth Circuit
FILED
Summary Calendar December 5, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RANDY RAY WESSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-245-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Pursuant to a written plea agreement, Randy Ray Wesson pleaded guilty
to one count of possessing and one count of receiving a visual depiction of a
minor engaged in sexually explicit conduct. In his plea agreement, Wesson
waived his right to appeal his conviction and sentence, other than to raise
certain limited claims. On appeal, he argues that the magistrate judge—
taking Wesson’s plea with consent—committed an error during his plea
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10909 Document: 00514261531 Page: 2 Date Filed: 12/05/2017
No. 16-10909
colloquy under Federal Rule of Criminal Procedure 11(b)(1)(H) by failing to
inform him of the statutory maximum penalties for each offense subject to his
guilty plea. Impliedly, he argues that this error invalidated his appeal waiver
because, as a result of the magistrate judge’s purported Rule 11 error, his plea
was not knowing and voluntary.
Because Wesson did not object to his plea colloquy during his
rearraignment proceeding, we review the question of whether the district court
failed to advise him of the statutory maximum penalties for the subject
offenses for plain error. See United States v. Brown, 328 F.3d 787, 789 (5th
Cir. 2003). In order to establish plain error, Wesson must show (i) a clear or
obvious error; (ii) but for the error, there is a reasonable probability that
Wesson would not have pleaded guilty; and (iii) the error seriously affected the
fairness, integrity, or public reputation of the proceedings. See United States
v. Alvarado-Casas, 715 F.3d 945, 951 (5th Cir. 2013).
We have reviewed the transcript from Wesson’s rearraignment
proceeding and find no error under Rule 11(b)(1)(H), much less a clear or
obvious one. Wesson was clearly informed that the maximum statutory
penalty for each count subject to his guilty plea was 20 years of imprisonment.
Wesson also signed a factual resume that clearly states the maximum penalty
for each count. At his rearraignment, Wesson confirmed that he had read and
fully understood the factual resume and agreed to waive its reading.
Wesson raises no other claims that his plea was involuntary or
unknowing, and we find that his appeal waiver is valid and enforceable.
Accordingly, Wesson’s claims on appeal alleging district court errors and
deprivations of his constitutional rights concerning his sentencing are barred,
as they do not implicate any exceptions to the appeal waiver. We also find that
the record on appeal is not sufficiently developed to permit direct review of
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No. 16-10909
Wesson’s claims of ineffective assistance of counsel. See United States v.
Wallace, 759 F.3d 486, 497-98 (5th Cir. 2014). Because that is usually the case,
a 28 U.S.C. § 2255 motion is the preferred method for raising ineffective
assistance of counsel claims. See Massaro v. United States, 538 U.S. 500, 503-
09 (2003).
Based on the foregoing, we AFFIRM the district court’s judgment
without prejudice to Wesson’s right to pursue his ineffective assistance of
counsel claims in a § 2255 motion.
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