UNITED STATES OF AMERICA, Plaintiff-Appellee v. TERRAL JAMES TAYLOR, Defendant-Appellant
No. 09-10904
United States Court of Appeals, Fifth Circuit
Dec. 9, 2010.
404 Fed. Appx. 963
The attorney appointed to represent Terral James Taylor has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Taylor has filed a response. The record is insufficiently developed to allow consideration at this time of Taylor‘s claims of ineffective assistance of counsel; such claims generally “cannot be resolved on direct appeal when [they have] not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir.2006) (internal quotation marks and citation omitted). Our independent review of the record, counsel‘s brief, and Taylor‘s response discloses no nonfrivolous issue for appeal. Accordingly, counsel‘s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
UNITED STATES of America, Plaintiff-Appellee v. Danny Ray BARRETT, Defendant-Appellant.
No. 09-10937.
United States Court of Appeals, Fifth Circuit.
Dec. 9, 2010.
404 Fed. Appx. 964
Kevin Joel Page, Federal Public Defender‘s Office, Dallas, TX, for Defendant-Appellant.
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Danny Ray Barrett pleaded guilty to a superseding indictment charging him with, inter alia, access device fraud (count 2) and wire fraud (count 5). The district court sentenced him to 120 months on each count to be served concurrently. Barrett seeks to appeal his sentence on the ground that the district court failed to apply properly
As part of his plea agreement, Barrett waived his right to appeal, but he reserved the right to challenge a sentence exceeding the statutory maximum punishment, an arithmetic error at sentencing, the voluntariness of the plea or the appeal waiver, and any alleged ineffective assistance of his counsel. Because the Government seeks to enforce the appeal waiver, we consider its applicability. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006). We apply a two-step inquiry, asking “(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). Barrett does not contest the voluntariness of his guilty plea or the appeal waiver, so we proceed to the second step.
Barrett argues that the appeal waiver is inapplicable here because he challenges an arithmetic error at sentencing. We disagree. Barrett committed his wire fraud offense while he was on pretrial release for the access device fraud offense. As a result, Barrett received a 3-level adjustment to his base offense level pursuant to
Under
Barrett argues that the district court failed to impose a sentence in accord with
Nothing in Barrett‘s plea agreement or in his plea colloquy leads us to believe that the parties intended the phrase “arithmetic error” as used in the appeal waiver to mean anything beyond its plain text as an error involving a mathematical calculation. See Bond, 414 F.3d at 545 (“We must interpret the plea agreement like a contract, in accord with what the parties intended.“). Barrett argues that the most common mathematical operations are addition, subtraction, multiplication, and division, and that because the district court failed to divide the sentence and subtract the penalty provision from the total punishment, the district court‘s error here was a mathematical error. But the district court‘s application of
Barrett argues that the court failed to apportion the sentence at all, and that the court‘s error resulted in a “misapplication” of
APPEAL DISMISSED.