United States v. Richard Bellock , 590 F. App'x 432 ( 2015 )

Case: 14-60254 Document: 00512904095 Page: 1 Date Filed: 01/15/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60254 FILED
Summary Calendar January 15, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICHARD STEPHEN BELLOCK,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:13-CR-48-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Richard Stephen Bellock challenges the seventy-month sentence he
received following his guilty plea conviction for conspiracy to defraud the
Department of Defense. He asserts that the district court erred in imposing a
ten-level sentencing enhancement after determining that the applicable loss
amount was $169,602.54. Bellock also contends that the district court erred in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60254
applying sentencing enhancements for the unlawful use of identification, the
number of victims, a leadership role, and obstruction of justice.
As part of Bellock’s plea agreement, Bellock agreed to waive his “right to
appeal the conviction and sentence imposed in this case, or the manner in
which that sentence was imposed, on the grounds set forth in Title 18, United
States Code, Section 3742, or on any ground whatsoever.” Relying on the
appellate waiver in the plea agreement, the Government seeks dismissal of the
appeal or, alternatively, summary affirmance of the district court’s judgment.
Bellock contends that the waiver does not bar his appeal because challenges to
the Guidelines calculations are not encompassed by the waiver provision and
because the district court failed to state specifically that the general waiver of
his right to challenge the imposition of his sentence included the district court’s
determinations under the Sentencing Guidelines. Bellock also maintains that
the Government may not invoke the waiver provision on appeal because it did
not raise the waiver when Bellock objected at sentencing to the Guidelines
calculations.
We review the validity of an appeal waiver de novo. United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The waiver provision broadly
waived Bellock’s right to appeal his sentence “on any ground whatsoever,” as
well as his appellate rights under 18 U.S.C. § 3742(a)(2), which included his
right to appeal an “incorrect application of the sentencing guidelines.” The
record of the rearraignment shows that the waiver was knowing and voluntary,
as Bellock knew he had the right to appeal and that he was giving up that right
in the plea agreement. See United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005); United States v. Portillo, 18 F.3d 290, 292–93 (5th Cir. 1994). The
plea agreement that Bellock signed contained the waiver provision, and the
waiver did not include any exceptions specifically authorizing a challenge to
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No. 14-60254
the Guidelines calculations. Bellock confirmed under oath that he had
reviewed the plea agreement with counsel and that he understood it. The
district court specifically advised Bellock that he was “waiving [his] right to
appeal the conviction and sentence in this case or the manner in which the
sentence is imposed on any grounds whatsoever.” Bellock again confirmed that
he understood this. Finally, the district court advised Bellock of the
applicability of the Sentencing Guidelines and the possibility that his sentence
may be higher than the sentence that Bellock’s counsel estimated.
Because the waiver provision did not bar objections to the Guidelines
calculations raised and addressed at sentencing, the Government was not
required to invoke the waiver in the district court, as Bellock claims. Under
the terms of the plea agreement, the district court was responsible for resolving
factual issues at sentencing and determining the appropriate sentence. The
waiver only bars Bellock’s appellate challenges to the Guidelines calculation.
When Bellock objected to the sentencing enhancements proposed in the PSR,
he was not attempting to appeal his conviction or sentence; instead, he was
invoking the district court’s authority to address factual sentencing disputes.
There was therefore no reason for the Government to raise the waiver
provision during the sentencing proceedings.
Because the plain language of the waiver provision applies to Bellock’s
challenges to his sentence on appeal, we will enforce the waiver and DISMISS
the appeal. See United States v. Bond, 414 F.3d 542, 544, 546 (5th Cir. 2005).
The Government’s motion to dismiss is GRANTED, and its alternative motion
for summary affirmance is DENIED.
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