United States v. Tommy Walters

732 F.3d 489

5th Cir.

2013

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Docket

UNITED STATES of America, Plaintiff-Appellee v. Tommy WALTERS, Defendant-Appellant.

No. 12-30571

United States Court of Appeals, Fifth Circuit.

Oct. 10, 2013.

732 F.3d 489

denial of Noatex‘s Rule 7 motion. Noatex requested an appeal bond of $31,000, reflecting an estimated $30,000 in attorney‘s fees on appeal⁸ and $1,000 in other costs. In assessing a Rule 7 motion, the relevant factors are: (1) whether there is a risk of non-payment in the event that the appellants lose their appeal, (2) any previous bad faith or vexatious conduct on part of the appellants, and (3) the likely merits of the appeal. See Adsani, 139 F.3d at 78-79; In re Am. President Lines, Inc., 779 F.2d 714, 716-17 (D.C.Cir.1985); Tri-Star Pictures Inc. v. Unger, 32 F.Supp.2d 144, 147-49 (S.D.N.Y.1999). Given the record and circumstances of this case, we conclude that there was no abuse of discretion and we decline to disturb the district court‘s stay. This does not preclude any arguments that may be made to the district court concerning Noatex‘s entitlement to the costs it included in the underlying bond amount.

III. CONCLUSION

In case No. 12-60385, we AFFIRM the district court‘s determination that Mississippi‘s Stop Notice statute is facially unconstitutional, and we DENY King‘s motion to withdraw its appeal.

In case No. 12-60586, we AFFIRM the district court‘s denial of Noatex‘s motion for further relief, and we AFFIRM the district court‘s stay of Noatex‘s appeal bond motion.

Helina S. Dayries, Assistant U.S. Attorney, Jennifer McDaniel Kleinpeter, Esq., Assistant U.S. Attorney, Catherine M. Maraist, Assistant U.S. Attorney, Frederick Angelo Menner, Jr., Assistant U.S. Attorney, Shubhra Shivpuri; Esq., Assistant U.S. Attorney, U.S. Attorney‘s Office, Baton Rouge, LA, for Plaintiff-Appellee.

Rebecca Louise Hudsmith, Esq., Federal Public Defender, Federal Public Defender‘s Office, Lafayette, LA, for Defendant-Appellant.

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

REAVLEY, Circuit Judge:

Tommy Walters appeals following his conviction by a jury of conspiracy and substantive drug offenses, as well as unlawful use of communications facilities. He challenges the participation of alternate jurors during the jury deliberations. Because Walters waived his right to appeal in a sentencing agreement, however, we DISMISS the appeal.

I.

Walters was charged in a multi-count, multi-defendant indictment with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, and three counts of unlawful use of communication facilities. The Government filed a notice of sentencing enhancement pursuant to 21 U.S.C. § 851(a) because Walters had two prior felony drug convictions. The enhancement exposed Walters to a mandatory sentence of life imprisonment in the instant case. Following the jury‘s verdict of guilty, Walters filed motions for a new trial and to arrest judgment, arguing that the district court had improperly allowed two alternate jurors to participate in the jury deliberations.

Walters subsequently entered into a sentencing agreement with the Government in which he agreed to withdraw his pending motions and waive his right to appeal the conviction and sentence in exchange for the Government‘s dismissal of the second statutory sentencing enhancement. As a result of this agreement, Walters faced a mandatory minimum sentence of twenty years in prison. Walters and his counsel both signed the agreement, and at sentencing Walters re-affirmed his intent to enter into the agreement after it was read aloud by the Government‘s attorney. The district court sentenced Walters to a total term of 240 months in prison.

II.

On appeal, Walters seeks to argue that the district court plainly erred by allowing two alternate jurors to take part in the jury deliberations. The Government argues that the appeal is barred by the appeal waiver in the sentencing agreement. We have not previously addressed the enforceability of appeal waivers contained in sentencing agreements, although we have routinely enforced voluntary and informed appeal waivers contained in plea agreements. See, e.g., United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Our sister circuits have uniformly held that waivers in sentencing agreements are enforceable just as waivers in plea agreements are enforceable. See, e.g., United States v. Cheney, 571 F.3d 764, 766 (8th Cir.2009); United States v. Trejo-Nolasquez, 346 Fed.Appx. 374, 375-77 (5th Cir.2009); United States v. Cano, 190 Fed.Appx. 34, 36-37 (2d Cir.2006); United States v. Stevens, 66 F.3d 431, 437 (2d Cir.1995). We agree with our sister circuits.

The validity of an appeal waiver is an issue of law that we review de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir.2005). We will enforce a defendant‘s waiver of appellate rights if the waiver was knowing and voluntary, and if the waiver applies to the circumstances at hand. United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005).

In the instant case, Walters challenges only the voluntariness of his appeal waiver. He argues that the waiver was not knowing and voluntary because the district court did not address the waiver in open court at sentencing and failed to ensure that he fully understood the consequences of the waiver. We are not persuaded.

The sentencing agreement expressly indicated that [t]he defendant acknowledges that this Agreement has been entered into knowingly, voluntarily, and with the advice of counsel, and that he fully understands it. Both Walters and his counsel signed the agreement. At the sentencing hearing, the Government‘s attorney read the agreement into the record. Walters then verbally re-affirmed that he had signed the document and that it was his intent to enter into the agreement. He raised no question about the waiver. Walters argues that the district court did not discuss or explain the waiver provision at the sentencing hearing. But because Walters‘s waiver was contained in a post-verdict agreement rather than in a pre-trial plea agreement, as is typical, the requirement that the district court discuss an appeal waiver before accepting a guilty plea is inapplicable. See Fed.R.Crim.P. 11(b)(1)(N); Cheney, 571 F.3d at 767 & n. 4; Trejo-Nolasquez, 346 Fed.Appx. at 376. Walters acknowledged both in writing and at the sentencing hearing that he intended to enter into and understood the agreement, which contained a clear and explicit waiver, and we conclude that the waiver was therefore both knowing and voluntary. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir.2005) (Because McKinney indicated that he had read and understood the plea agreement, which includes an explicit, unambiguous waiver of appeal, the waiver was both knowing and voluntary.).

As a result of the sentencing agreement, Walters voluntarily chose the guarantee that he would not face a mandatory life term in prison over the uncertainty of pursuing an appeal. He may not now avoid the consequences of his agreement after having received the benefit of his bargain.

APPEAL DISMISSED.

Notes

Rule 7 provides that “the district court may require an appellant to file a bond ... to ensure payment of costs on appeal.” Fed. R.App. P. 7. The propriety of including attorney‘s fees as “costs” under Rule 7 is subject to some dispute. See In re Am. President Lines, Inc., 779 F.2d 714, 716 (D.C.Cir.1985) (holding that attorney‘s fees do not constitute costs under Rule 7); but see Sams v. Hoechst Aktiengesellschaft (In re CD Antitrust Litig.), 391 F.3d 812, 816-17 (6th Cir.2004) (holding that attorney‘s fees can constitute costs under Rule 7 where the statute governing the underlying cause of action defines costs to include attorney‘s fees). We assume without deciding that attorney‘s fees may constitute costs for Rule 7 purposes here.

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