United States v. Terry Kelly, 915 F.3d 344

Terry Kelly, a convicted felon, pleaded guilty to being a felon in possession of firearms (18 U.S.C. § 922(g)(1)) and agreed to an appeal-and-collateral-attack waiver in his plea agreement, excepting claims of ineffective assistance of counsel (IAC) and prosecutorial misconduct.
The district court conducted a Rule 11 plea colloquy and confirmed Kelly’s understanding of the waiver; Kelly acknowledged the plea and waiver at plea and sentencing.
The government filed and the court granted a § 5K1.1 motion for substantial assistance; the court sentenced Kelly to 100 months’ imprisonment (below the ACCA 15-year minimum and the applicable guideline range).
After sentencing Kelly raised two issues on appeal: (1) that the ACCA enhancement was improperly applied (insufficient violent-felony predicates), and (2) his trial counsel provided ineffective assistance by failing to challenge the ACCA enhancement post-Johnson/Mathis.
The appeal raises waiver and ripeness questions: whether the plea waiver bars the ACCA challenge, and whether the IAC claim is ripe for resolution on direct appeal given the undeveloped record.

Issue	Plaintiff's Argument (Kelly)	Defendant's Argument (Government)	Held
Whether the appeal waiver bars Kelly’s challenge to the ACCA enhancement	Waiver was knowing but he would not have pleaded guilty if he understood ACCA might be challengeable under recent Supreme Court rulings	Waiver was knowing, voluntary, clear, and bars the ACCA challenge	Waiver was knowing and voluntary and bars the ACCA claim
Whether Kelly’s IAC claim survives the waiver (i.e., can avoid waiver)	IAC exception preserves right to appeal; counsel’s failure to challenge ACCA post-Johnson/Mathis was deficient and prejudicial	IAC claim is not ripe on direct appeal; record is insufficient to assess counsel’s strategy	IAC exception preserves the right to raise IAC, but claim is not ripe for merits review on direct appeal and must be raised on collateral review

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong IAC test: deficiency and prejudice)
White v. United States, 307 F.3d 336 (5th Cir. 2002) (IAC can vitiate appeal waiver)
Bond v. United States, 414 F.3d 542 (5th Cir. 2005) (two-step test for enforcing appeal waivers: knowing/voluntary and scope)
Keele v. United States, 755 F.3d 752 (5th Cir. 2014) (requirements for waiver to be knowing and voluntary)
McKinney v. United States, 406 F.3d 744 (5th Cir. 2005) (plea-agreement interpretation principles)
Gulley v. United States, 526 F.3d 809 (5th Cir. 2008) (IAC claims usually not resolved on direct appeal absent developed record)
Higdon v. United States, 832 F.2d 312 (5th Cir. 1987) (IAC claims require record development for direct review)
Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard when ineffective assistance leads to guilty plea)
Isgar v. United States, 739 F.3d 829 (5th Cir. 2014) (preserving right to raise IAC on collateral review)