United States v. Michael Ottogalli , 690 F. App'x 881 ( 2017 )

Case: 16-50831 Document: 00514037922 Page: 1 Date Filed: 06/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50831 FILED
Summary Calendar June 19, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
MICHAEL JAVIER OTTOGALLI, Also Known as Michael J. Ottogalli,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:16-CR-104-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Under a plea agreement containing an appeal waiver, Michael Ottogalli
pleaded guilty of distribution of child pornography and was sentenced to
240 months of imprisonment and 15 years of supervised release. Ottogalli con-
tends that the district court erred in applying the five-level enhancement
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50831 Document: 00514037922 Page: 2 Date Filed: 06/19/2017
No. 16-50831
under U.S.S.G. § 2G2.2(b)(3)(B) for distribution in exchange for a thing of value
and in applying the two-level enhancement under U.S.S.G. § 3B1.3 for abuse
of a position of trust. The government seeks enforcement of the appeal waiver.
Ottogalli asserts that the waiver is unenforceable because the district court did
not comply with Federal Rule of Criminal Procedure 11(b)(1)(N).
In determining the enforceability of an appeal waiver, we determine
whether it 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). For a waiver to be knowing and voluntary,
the defendant must know that he has the right to appeal and that he is giving
up that right. United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005).
Because Ottogalli did not object in the district court to an alleged
Rule 11(b)(1)(N) error, review is for plain error only. See United States v. Oli-
ver, 630 F.3d 397, 411 (5th Cir. 2011). Under that standard, Ottogalli must
show a clear or obvious forfeited error that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the error but only if it seriously affects the fairness, integ-
rity, or public reputation of the proceedings. See id.
Ottogalli signed the plea agreement and indicated that he had read all
of it, which included the appeal waiver. The district court told him that he
would be waiving certain rights by pleading guilty under the plea agreement,
including the right to appeal. Ottogalli does not show that the court committed
clear or obvious error. See Puckett, 556 U.S. at 135 (“[To be plain], the legal
error must be clear or obvious, rather than subject to reasonable dispute.”).
Because the appeal waiver was informed and voluntary, it bars Otto-
galli’s sentencing claims. See Bond, 414 F.3d at 544. Accordingly, the appeal
is DISMISSED. See 5TH CIR. R. 42.2.
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