Lеroy Baymon, Jr., was charged by bill of information with four counts of being a *726 public official who accepted a thing of value in return for introducing prohibited contraband into a federal prison in violation of 18 U.S.C. § 201(b)(2)(C). Pursuant to a plea agreement, he pled guilty to two counts of thе bill of information. In the plea agreement, Baymon waived his right to appeal his conviction and his sentence. He was sentenced and now appeals claiming that his waiver does not prevent this appeal, the district court committed plain error because the conduct alleged by the government and admitted by him did not constitute a violation of 18 U.S.C. § 201(b)(2)(C), and, in the alternative, pursuant to the United States Sentencing Guidelines he should have been given a reduction in his sentence for acceptance of responsibility.
BACKGROUND
Leroy Baymon, Jr., worked as a cook foreman at Yazoo City Federal Correctional Facility. On April 17, 2001, Baymon was charged by bill of information with four counts of accepting bribes to introduce contraband into a federal correctional facility. Counts 1 and 2 alleged Baymon received postal money orders in exchange for smuggling in cell phones. Counts 8 and 4 alleged Baymon received $800 in postal money orders in exchange for smuggling in a watch and a chain and medallion. All these items were considered prohibited contraband and emplоyees of the prison were not allowed to give these items to prisoners.
On June 18, 2001, Baymon waived indictment and pled guilty to counts 3 and 4 pursuant to a plea agreement, which contained an appeal waiver. The waiver provision stated in pertinent part:
The Defendant ... hereby expressly waives the right to appeal the conviction and/or sentence imposed in this case, or the manner in which that sentence was imposed, on the grounds set forth in Section 3742, or on any ground whatsoever, and expressly waives the right to contеst the conviction and/or sentence or the manner in which the sentence was imposed in any post-conviction proceeding, including but not limited to a motion brought under Section 2255, Title 28, United States Code and any type of proceeding claiming double jeopardy оr excessive penalty as a result of any forfeiture ordered or to be ordered in this case.
R. at vol. 1, p. 15.
During the guilty plea hearing on June 18, 2001, Baymon was placed under oath and he admitted to being a “public official” working at the prison and that he smuggled in prohibited contraband in еxchange for the postal money orders. Additionally, before accepting Baymon’s guilty plea, the district court directed Baymon to listen to the prosecutor’s description of “any Memorandum of Understanding that [the prosecutor] might have with this defendant, particular rеferencing any waivers of appeal that may be contained therein.” R. at vol. 2, p. 12. The prosecutor then recited the terms of the plea agreement. Then the court made sure the agreement was signed by all the parties. Following a recital of the faсtual basis for the plea by the prosecutor, which referenced Baymon’s status as an employee at the Yazoo City facility, the defendant acknowledged his guilt and the district court accepted the plea.
On October 9, 2001, Baymon was sentenced to six months in prison on each count, to run concurrently; three years of supervised release, and a $200 special assessment.
On appeal, Baymon argues that neither his unconditional guilty plea nor the appeal waiver contained in his plea agreement prevеnts this appeal. He argues that the *727 factual basis was insufficient to support his plea insofar as it failed to establish that he was a “public official” pursuant to 18 U.S.C. § 201(a). Further, Baymon argues that the district court clearly erred in failing to award him a reduction in his sentence for acceptance of responsibility.
The Government argues that Baymon has waived his opportunity to challenge the factual basis of the bill of information by virtue of his unconditional guilty plea and the appeal waiver provision in the plea agreement. Morеver, according to the government, under the plain error standard the evidence was sufficient to show that Baymon was a “public official” within the meaning of 18 U.S.C. § 201. Finally, the government asserts that the district court properly refused to award Baymon a reduction in sentence for acceptance of responsibility.
DISCUSSION
Whether Baymon’s guilty plea and waiver of his ñght to appeal in the plea agreement prevent the Court from addressing this appeal.
This Court must determine whether Baymon’s unconditional guilty plea with his admission that he was a public оfficial and his waiver of his right to appeal in his written plea agreement prevent his appeal in this case. This is a question of law and, therefore, we review the issue
de novo. United States v. Izydore,
The right to appeal a conviction and sentence is a statutory right, not a constitutional onе, and a defendant may waive it as part of a plea agreement.
United States v. Dees,
Although
Spruill, White,
and
Johnson
are not directly applicable to this case because in those cases either the bill оf information faded to allege a factual element of the crime, or the defendant brought a motion to dismiss before plead
*728
ing guilty, or the plea agreements were conditional, the Court in those cases allowed the defendants to appeal issues which by thе terms of the parties’ plea agreements were waived.
Spruill,
Whether Baymon was a public official so that the factual basis was sufficient to support his guilty plea to the bribe charges.
This Court needs to determine whether it was error for the district court to accept Baymon’s plea based on the fact that he was an employee of the Bureau of Prisons at time of the offense and he admitted to being a public officer. Baymon did not objеct in the district court that he was not a “public official.” Therefore, we apply the plain error standard to his sufficiency challenge, as the issue is raised for the first time on appeal.
United States v. Marek,
Section 201 defines the term “public official” to include “an officer or employee or person acting for or on behalf of the United Statеs, or any department, agency or branch of Government thereof, ... in any official function, under or by authority of any such department, agency, or branch of Government.” 18 U.S.C. § 201(a)(1). The federal bribery statute “has been accurately characterized as a comprehensive statute applicable to all persons performing activities for or on behalf of the United States, whatever the form of delegation of authority.”
Dixson v. United States,
In
United States v. Thomas,
this Court held that a privately employed guard whose employer contracted with the INS to house INS detainees was a “public official” under § 201, because he performed the same duties as a federal corrections officer and thus occupied a position of trust with official federal responsibilities.
In this case, the bill of information classifies Baymon as a “public officer” by virtue of his еmployment with the Bureau of Prisons at a federal correctional facility. R. at vol. 1, p. 2. Baymon admitted to being a “public officer.” R. at vol. 2, p. 9. Baymon agreed with the prosecutor’s Memorandum of Understanding, which indicated Baymon was a public official. R. at vol. 2, p. 12-13. Finally, Baymon states in his brief that he was a “cook foreman” employed at the Yazoo City Facility. Brief for Appellant at 3.
The fact that Baymon was a federal employee with official functions is sufficient, under the plain error standard, to find he is a public official.
See
18 U.S.C. 201(a). Moreover, Baymon’s case is distinguishable from
Krichman
insofar as Bay-mon was employed by the Bureau of Prisons, which is different from employment with a private railroad company that was taken over for a time by the federal government.
See Krichman,
Whether Baymon should have received an adjustment for acceptance of responsibility
In his plea agreement, Baymon expressly waived appeal of the “sentence imposed in this case, or the manner in which that sentence was imposed, on the grounds set forth in Section 3742, or on any ground whatsoever.” R. at vol. 1, p. 15. A defendant may waive his statutory right to appeal аs part of a valid plea agreement if the waiver is made knowingly and voluntarily.
United States v. Melancon,
In this case, the district court instructed the prosecutor to inform Baymon of any appeal waiver provision in the plea agreement. The Proseсutor responded that the agreement provided that “the defendant waive[d] his right to appeal the conviction and the sentence imposed in this case on any ground, and he also waives all post-conviction attacks upon his conviction or sentencе.” R. at vol. 2, p. 13. Baymon did not argue then, nor does he now, that the waiver provision was made unknowingly or involuntarily; therefore, he has waived his right to appeal the sentence.
CONCLUSION
Having carefully reviewed the record of this case and the parties’ respective briefing, fоr the reasons set forth above we *730 conclude that there was no plain error and there was a sufficient factual basis to accept Baymon’s plea. Furthermore, Baymon has waived his appeal as to sentencing. Accordingly, we DISMISS THE APPEAL as to sentencing, and AFFIRM his conviction.