     Case: 11-50438     Document: 00511788238         Page: 1     Date Filed: 03/14/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 14, 2012
                                     No. 11-50438
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DERRICK WHEATEN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CR-284-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Derrick Wheaten pleaded guilty to aiding and
abetting and possession with intent to distribute 50 grams or more of cocaine
base and was sentenced to 132 months of imprisonment. Wheaten pleaded
guilty to the charge pursuant to a written plea agreement in which he waived
the right to appeal his sentence. He contends, however, that the district court
failed to ascertain whether he had read and understood the appeal waiver
provision of the agreement. He thus claims that he did not knowingly and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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voluntarily waive the right to appeal his sentence. Wheaten requests that we
not enforce the waiver but address the merits of his sentencing issues, namely,
that the district court erred in (1) refusing to apply the Fair Sentencing Act of
2010, and (2) converting the amount of cash seized to drug quantity to determine
his base offense level. The government seeks enforcement of the waiver.
      A defendant may waive his right to appeal if the waiver is made knowingly
and voluntarily. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
“A defendant must know that he had a right to appeal his sentence and that he
was giving up that right.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir.
1994) (internal quotation marks and citation omitted). A defendant’s waiver is
knowing and voluntary if he indicates that he has read and understood the plea
agreement, which contains an “explicit, unambiguous waiver of appeal.”
McKinney, 406 F.3d at 746. A district court must ascertain that a defendant
understands provisions in the plea agreement waiving the right to appeal. FED.
R. CRIM. P. 11(b)(1)(N).
      When, as here, the appellant’s challenge to an appeal waiver rests solely
on a Rule 11 deficiency and the appellant did not contemporaneously object to
the district court’s failure to comply with Rule 11, our review is for plain error
in light of the record as a whole. See United States v. Oliver, 630 F.3d 397, 411
(5th Cir.), cert. denied, 132 S. Ct. 758 (2011); United States v. Narvaez, No. 10-
50699, 2011 WL 6004017, at *2 (5th Cir. Nov. 28, 2011) (unpublished). To show
plain error, Wheaten must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      The record reflects that Wheaten’s waiver of his right to appeal his
sentence was knowing and voluntary and that any defects in the Rule 11 plea
colloquy did not affect his substantial rights. The district court asked several

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                                  No. 11-50438

questions that probed Wheaten’s understanding of the plea agreement’s terms.
The district court asked him to confirm his understanding that he was giving up
all the rights of a jury trial, the voluntariness of his plea, his opportunity to
confer with counsel, the wrongfulness of his conduct, and the maximum and
minimum penalties. Further, Wheaten’s response that he agreed to the factual
basis and that he understood that the government would dismiss the weapons
charge in exchange for its use as an enhancement at sentencing indicates that
he had read the plea agreement. At no time did Wheaten indicate at the
rearraignment that he did not understand any of the terms set forth in the
agreement. Moreover, Wheaten signed the agreement in which he attested that
he had read it and understood its terms. Accordingly, Wheaten should “be held
to the bargain to which he agreed.” See McKinney, 406 F.3d at 746.
      Wheaten also contends, for the first time on appeal, that the government
breached the plea agreement by arguing in favor of the base offense level set
forth in the presentence report, making the plea agreement, including the appeal
waiver provision, unenforceable. He has not, however, demonstrated that his
interpretation of the plea agreement was reasonable. See United States v.
Cerverizzo, 74 F.3d 629, 632 (5th Cir. 1996). Thus, Wheaten has not shown plain
error with respect to his claim that the government breached the plea
agreement. See Puckett, 556 U.S. at 135.
      Finally, Wheaten’s challenge to the cash-to-drugs conversion used to
determine his base offense level does not fall within the plain language of the
waiver exception. Therefore, we shall enforce the waiver to bar his appeal on
this issue. See McKinney, 406 F.3d at 746. Wheaten’s contention that the
district court erred in refusing to apply the FSA to his case–assuming that the
issue falls within an exception to the waiver–is foreclosed by our decision in
United States v. Tickles, 661 F.3d 212, 214-15 (5th Cir. 2011), petition for cert.
filed, (Dec. 15, 2011) (No. 11-8023), and petition for cert. filed, (Dec. 27, 2011)
(No. 11-8268).

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   The judgment of the district court is AFFIRMED.




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