United States v. Donahue , 333 F. App'x 897 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2009
No. 08-30464
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BOBBY B DONAHUE,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CR-214-1
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Bobby B. Donahue appeals the 210-month sentence he received after he
pleaded guilty to four counts of distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1). He does not mention the appeal waiver that was part of his written
plea agreement. Because the Government has invoked the waiver, this court
considers whether it applies to bar Donahue’s appeal. See United States v. Story,
439 F.3d 226, 230-31 (5th Cir. 2006).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30464
“To determine whether an appeal of a sentence is barred by an appeal
waiver provision in a plea agreement, [this court] conduct[s] 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). A waiver
is knowing and voluntary where the defendant indicates at the plea hearing that
he has read and understands the plea agreement containing the waiver. United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
The plea agreement was read in open court. Donahue confirmed that his
signature appeared on the last page of the agreement. The district court
reviewed the terms of the appeal waiver and ascertained that Donahue
understood them. Donahue confirmed that his plea was knowing and voluntary.
Thus, Donahue’s waiver is valid. See Bond, 414 F.3d at 544. Donahue has not
briefed, and has therefore waived, any argument that the exceptions to the
waiver apply to his case. See United States v. Thames, 214 F.3d 608, 611 n.3
(5th Cir. 2000). In any event, the terms of the waiver unequivocally bar an
appeal of the sentence except in cases of a departure, a sentence above the range
calculated by the district court, or a sentence above the statutory maximum,
none of which apply here.
Because the waiver is valid, the appeal is dismissed as frivolous. See 5th
Cir. R. 42.2. Further, counsel is warned that the filing of an appeal despite a
valid appeal waiver and failing to address the waiver in a reply brief after the
Government has raised it wastes judicial resources and will invite sanctions.
See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).
DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
2