     Case: 19-20379       Document: 00515458587         Page: 1     Date Filed: 06/19/2020




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


                                     No. 19-20379                                FILED
                                   Summary Calendar                          June 19, 2020
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TADARIUS ROBINSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-99-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Tadarius Robinson pleaded guilty, pursuant to a plea agreement that
included an appeal waiver, to aiding and abetting the using, carrying, and
discharging of a firearm in furtherance of a crime of violence, in violation of 18
U.S.C. §§ 2 and 924(c)(1)(A)(iii), and to two counts of aiding and abetting the
interference with commerce by robbery, in violation of 18 U.S.C. §§ 2 and
1951(a). He was sentenced to, inter alia, 240-months’ imprisonment.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 19-20379     Document: 00515458587      Page: 2   Date Filed: 06/19/2020


                                  No. 19-20379

      Robinson challenges the procedural reasonableness of his sentence,
asserting the district court erred by applying an aggravating-role adjustment
under Sentencing Guideline § 3B1.1(a) (four-level enhancement for “organizer
or leader of a criminal activity that involved five or more participants or was
otherwise extensive”). As noted, however, his written plea agreement included
a waiver of his right to appeal, or collaterally attack, his convictions or
sentence, except for ineffective-assistance-of-counsel claims.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). As stated, Robinson claims only procedural error.
      A defendant may “waive statutory rights, including the right to appeal”,
as part of a valid plea agreement. United States v. Melancon, 972 F.2d 566,
567–68 (5th Cir. 1992). “This court reviews de novo whether an appeal waiver
bars an appeal.” United States v. Winchel, 896 F.3d 387, 388 (5th Cir. 2018)
(italics added) (citation omitted). In doing so, “we conduct a two-step inquiry:
(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) (citation
omitted).




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    Case: 19-20379    Document: 00515458587     Page: 3    Date Filed: 06/19/2020


                                 No. 19-20379

      For an appeal waiver to be knowing and voluntary, “[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). In that regard, before accepting a plea,
“the court must ensure that the defendant has a full understanding of what
the plea connotes and of its consequence”. Taylor v. Whitley, 933 F.2d 325, 329
(5th Cir. 1991) (internal quotation marks and citation omitted).
      In his opening brief, Robinson contends only that the court “erroneously”
applied the aggravating-role adjustment; he does not mention his appeal
waiver. But, his signed plea agreement, its addendum, and the transcript of
his rearraignment hearing, taken together, support the conclusion that
Robinson knowingly and voluntarily waived his right to appeal. See Bond, 414
F.3d at 544 (citation omitted). Moreover, the text of Robinson’s appeal waiver
applies to his procedural-reasonableness challenge.       See id.; see also, e.g.,
United States v. Rodriguez-Estrada, 741 F.3d 648, 649 (5th Cir. 2014)
(enforcing appeal waiver of defendant’s sentencing-enhancement challenge).
      For the first time in his reply brief, following the Government’s asserting
his appeal waiver barred his procedural-reasonableness challenge, Robinson
contends the waiver was unknowing and involuntary to the extent it prevents
him from seeking review of a then yet-to-be-determined sentence. It goes
without saying that generally our “court does not entertain arguments raised
for the first time in a reply brief”. United States v. Ramirez, 557 F.3d 200, 203
(5th Cir. 2009) (citation omitted).     That said, we “view[] the situation
differently when[, as in this instance,] a new issue is raised in the appellee’s
brief and the appellant responds in his reply brief” and have exercised our
discretion to address an issue’s merits under such circumstances. Id. (citations
omitted).



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                                No. 19-20379

      That exception applies here. But, because “[a]ppellate waivers foreclose
challenges to many aspects of a sentence that may be unlawful, such as
improper   application   of   sentencing   enhancements     or      substantively
unreasonable sentences”, we conclude that Robinson’s challenge to the
aggravating-role adjustment was waived, and we will not consider it. United
States v. Yiping Qu, 618 F. App’x 777, 780 (5th Cir. 2015) (per curiam)
(citations omitted); see also Rodriguez-Estrada, 741 F.3d at 649.
      DISMISSED.




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