     Case: 11-40325     Document: 00512006890         Page: 1     Date Filed: 10/02/2012




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

                                                                            FILED
                                                                          October 2, 2012
                                       No. 11-40325
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

KYLE EDWARD PALMER,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                                 6:09-CR-112-2



Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        This appeal arises out of Defendant-Appellant Kyle Edward Palmer’s
(“Palmer”) challenge to his conviction and sentence following his guilty plea to
conspiracy to possess with intent to distribute between 50 and 200 grams of a
substance containing methamphetamine, in violation of 21 U.S.C. § 846. We
conclude that Palmer waived his right to appeal his conviction and sentence by
entering his guilty plea. Therefore, we AFFIRM.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40325   Document: 00512006890        Page: 2   Date Filed: 10/02/2012

                                  No. 11-40325

                                        I.
      On October 1, 2010, Palmer pleaded guilty to the offense of conspiracy to
possess with intent to distribute between 50 and 200 grams of a substance
containing methamphetamine, in violation of 21 U.S.C. § 846. The following
events occurred on the day that Palmer entered his plea. Palmer consented to
have a plea hearing with Magistrate Judge John D. Love. Palmer and his
counsel signed a factual resume, which was attached to his plea agreement. The
factual resume stated explicitly that it could be “used by the Court to determine
whether his plea is voluntary and knowing.” The factual resume also stipulated
to the amount of drugs involved in the conspiracy (50 to 200 grams), the value
of the drugs (at least $20,000), and Palmer’s unlawful and willful participation
in the conspiracy. Palmer’s counsel signed below a statement in the factual
resume attesting that he reviewed both the factual resume and the plea
agreement with Palmer. Palmer also signed below a statement in the factual
resume that he carefully reviewed “every part of” it with counsel, understood it,
and voluntarily agreed to it. The plea agreement, which was only eight-pages
long, included a concise and clearly written waiver of “the right to appeal the
conviction [and] sentence . . . on all grounds.” Palmer and his counsel signed the
last page of the plea agreement, attesting that they carefully reviewed “every
part” of the agreement together and that the plea was knowing and voluntary.
      Although it is unclear whether an equipment malfunction occurred or the
recording was lost, there is no available verbatim recording of the plea
proceeding. However, there is a copy of the checklist of the minute entry,
completed by the deputy clerk, which establishes that a plea proceeding occurred
on October 1, 2010, with Judge Love from 9:40 a.m. until 10:05 a.m. The
checked boxes on the minute entry indicate that Palmer appeared with counsel;
that Palmer was advised of the charges, his right to counsel, maximum
penalties, and right to remain silent; that the factual resume was read and the
factual basis for the plea was established; and that the court found the plea

                                        2
   Case: 11-40325       Document: 00512006890          Page: 3     Date Filed: 10/02/2012

                                        No. 11-40325

“voluntary, knowledgeable & that it has a basis in fact.”
       On October 6, 2010, Judge Love filed a Report and Recommendation in
regard to the plea proceedings.            Judge Love reported that the court had
admonished Palmer as required by Federal Rule of Criminal Procedure 11.
Judge Love also found that Palmer fully understood the terms of the plea
agreement, and that he understood and wished to waive his constitutional and
statutory rights. On October 25, 2010, United States District Judge Leonard
Davis of the Eastern District of Texas adopted Magistrate Judge Love’s Report
and Recommendation. Judge Davis’ order states that Palmer made no objections
to the Report and Recommendation.
       The district court held a sentencing hearing on March 1, 2011, during
which it adopted the Pre-Sentence Investigation Report (PSR) in its entirety.
Palmer raised no objections to the PSR during the sentencing hearing. The PSR
calculated Palmer’s offense level at twenty-three and his criminal history at
Category V.1 This resulted in an advisory Guidelines sentencing range of 84 to
105 months. The district court imposed a sentence of 105 months’ imprisonment
and five years’ supervised release.2
       Palmer timely filed notice of appeal from the judgement of conviction and
sentence.     Palmer contends that the appeal waiver included in his plea
agreement is unenforceable. He further alleges that the district court’s failure
to record the plea proceedings in violation of Rule 11 constituted reversible plain
error.3


       1
         Palmer’s criminal history was based on nine prior convictions and the fact that he
was on state parole when he committed the instant offense.
       2
       The district court also imposed a $100 special assessment and granted the
government’s motion for criminal forfeiture.
       3
        Fed. R. Crim. P. 11(g), which applies to the recording of plea proceedings, states: “The
proceedings during which the defendant enters a plea must be recorded by a court reporter or
by a suitable recording device. If there is a guilty plea or nolo contendere plea, the record
must include inquiries and advice to the defendant required under Rule 11(b) and (c).”

                                               3
   Case: 11-40325      Document: 00512006890         Page: 4    Date Filed: 10/02/2012

                                      No. 11-40325

                                            II.
       When, as here, a defendant’s challenge to an appeal waiver rests solely on
a Rule 11 deficiency, and the defendant did not contemporaneously object to the
district court’s failure to comply with Rule 11, the court’s 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. 2011), cert. denied - - - U.S. - - - -, 132 S.Ct. 758, 181 L.Ed.2d 490 (2011).
To succeed on plain-error review, Palmer has the burden of showing: (1) an
error, (2) that was plain, and (3) that affected his substantial rights. Id. If
Palmer makes this showing, then the panel may exercise its discretion to correct
the error only if it seriously affects the “fairness, integrity, or public reputation
of judicial proceedings.” Id.
       Generally, a defendant may waive his right to appeal. United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005). To determine the validity of an
appeal waiver, the court conducts “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 [plea] agreement.”
United States v. Bond, 414 F.3d 542, 545 (5th Cir. 2005). Palmer’s claims
involve only the first step of this inquiry.4
       Palmer asserts that the lack of a recorded transcript of the plea
proceedings prevents the appellate court from ascertaining whether he
knowingly and voluntarily waived his right to appeal. Palmer further asserts
that because there is no recording of the plea proceedings, the court can assume
that the district court failed to advise him about the appeal waiver, and thus, it
is unenforceable. In contrast, the government points out that the available
portions of the record indicate that Palmer knowingly and voluntarily waived his


       4
         The second step is easily met in Palmer’s case. Palmer’s plea agreement states that
he waived his “right to appeal the conviction, sentence, fine and/or order of restitution or
forfeiture in this case on all grounds,” and the waiver contained no express exceptions.
Palmer’s allegation that the district court’s Rule 11 errors are grounds for vacating his
conviction and sentence fall squarely within the appeal waiver.

                                             4
   Case: 11-40325    Document: 00512006890        Page: 5   Date Filed: 10/02/2012

                                   No. 11-40325

right to appeal his judgment of conviction and sentence.
      We agree with the government.         In an unpublished, but persuasive
opinion, we affirmed that other parts of the available record can establish that
a defendant consented knowingly and voluntarily to an appeal waiver in a plea
agreement. See United States v. Tucker, 136 F. App’x 700, 700 (5th Cir. 2005)
(per curiam) (unpublished). Here, three relevant portions of the available record
show that Palmer knowingly and voluntarily waived his right to appeal. First,
Palmer included his signature immediately below a statement included on the
last page of the plea agreement that states: “I have read (or had read to me) this
plea agreement and have carefully reviewed every part of it with my attorney.”
The conciseness and clarity of the appeal waiver contained in the plea
agreement, which was only eight-pages long in its entirety, lends further support
to the conclusion that Palmer understood the waiver. See United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (recognizing that a “clearly written and
relatively short” appeal waiver was persuasive evidence to show that a
defendant understood the terms of the appeal waiver).
      Second, the Report and Recommendation signed by Magistrate Judge Love
on October 6, 2010, five days after Palmer entered into the plea agreement,
shows that Palmer knowingly and voluntarily waived his right to appeal. In his
findings, Judge Love stated explicitly that the “defendant fully understands the
terms of the plea agreement” and that “the defendant understands his
constitutional rights and wishes to waive these rights.” Palmer did not file any
objection to the Report and Recommendation, and the district court entered an
order adopting the Report and Recommendation on October 25, 2010.
      Third, the factual resume attached to the plea agreement indicates that
Palmer knowingly and voluntarily waived his right to appeal. The first sentence
of the factual resume stated: “IT IS HEREBY STIPULATED, by the defendant
. . . that [he] understands and agrees, with the express consent of counsel . . .
that this factual resume may be used by the Court to determine whether his plea

                                        5
   Case: 11-40325   Document: 00512006890       Page: 6   Date Filed: 10/02/2012

                                 No. 11-40325

is voluntary and knowing . . . .” The second page of the factual resume also
included the following statement:
      I have read this factual resume and the plea agreement in this
      matter and have reviewed them with my client. Based upon my
      discussions with the defendant, I am satisfied that he understands
      the terms of this factual resume and the plea agreement and is
      signing this factual resume voluntarily.
Both Palmer and his counsel signed the factual resume. The plea agreement
included the appeal waiver. Therefore, Palmer’s assent to the factual resume
establishes that he waived his right to appeal voluntarily and knowingly.
      Because we conclude that the appeal waiver in Palmer’s plea agreement
is enforceable, we do not reach the merits of his appeal.
                                      III.
        For the foregoing reasons, Palmer’s conviction and sentence are
AFFIRMED.




                                       6
