194 F. App'x 265
5th Cir.
2006

UNITED STATES of America, Plaintiff-Appellee, v. [REDACTED] EKENE, Defendant-Appellant.

No. 05-30857

United States Court of Appeals, Fifth Circuit

Aug. 24, 2006.

196 Fed. Appx. 264

Before SMITH, WIENER, and OWEN, Circuit Judges.

Finally, Ekene asserts two issues that are barred under the waiver provision in his plea agreement. First, he argues that the district court erred by enhancing his sentence by two levels because he used sophisticated means to carry out the embezzlement. Second, he argues that the district court erred by imposing the two-level enhancement for his unlawful use of identification to produce or obtain another means of identification. Ekene knowingly and voluntarily waived his right to appeal his conviction and sentence in the plea agreement. Although he reserved the right to appeal “an upward departure from the guideline range deemed applicable by the district court,” the enhancements at issue were not the basis of an upward departure from the guidelines range. Rather, they were used by the district court to calculate the applicable guideline range.

When the record indicates that the defendant read and understood his plea agreement, and he did not question the waiver of appeal provision, he “will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the waiver of appeal.” United States v. Portillo, 18 F.3d 290, 293 (5th Cir.1994). Ekene does not allege, and there is no indication in the record, that his acceptance of the plea agreement was unknowing or involuntary. The district court specifically admonished him that he was waiving his rights to appeal, and Ekene replied that he understood. Accordingly, the appeal waiver is valid and enforceable. See Portillo, 18 F.3d at 293.

Ekene argues that he did not admit the facts underlying the enhancements and that he preserved an objection under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, “an otherwise valid appeal waiver is not rendered invalid, or inapplicable to an appeal seeking to raise a Booker or Fanfan issue (whether or not that issue would have substantive merit), merely because the waiver was made before Booker.” United States v. Burns, 433 F.3d 442, 450-51 (5th Cir.2005).

The judgment of the district court is AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Rodney HUEY, Defendant-Appellant.

No. 05-31032 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 24, 2006.

James G. Cowles, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, Western District of Louisiana, Shreveport, LA, for Plaintiff-Appellee. Christopher Albert Aberle, Mandeville, LA, for Defendant-Appellant. Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Rodney Huey appeals his guilty-plea conviction for possession with the intent to distribute 50 grams or more of a mixture containing cocaine base. Huey argues that the district court erred when it failed to adequately inform him of the mandatory minimum sentence as required by Fed. R.Crim.P. 11(b)(1)(I). Where, as here, a defendant fails to object to a Rule 11 error in the district court, this court reviews for plain error. United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

Although the plea documents and the statements made by the district court at the guilty-plea hearing could have been more artfully phrased, they reflected that Huey was facing a sentence of 20 years to life. Moreover, the presentence report correctly reflected that, due to Huey‘s prior drug conviction, Huey faced a mandatory minimum sentence of 20 years in prison. The fact that Huey did not attempt to withdraw his guilty plea after the presentence report was disclosed suggests that the court‘s failure to succinctly inform him of the mandatory minimum sentence was not a significant factor in his decision to plead guilty. See United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc). Considering the record as a whole, Vonn, 535 U.S. at 68, 122 S.Ct. 1043, the district court‘s failure to succinctly advise Huey of the mandatory minimum sentence does not constitute plain error. The judgment of the district court is AFFIRMED.

Notes

*
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.