     Case: 18-10704      Document: 00515216174         Page: 1    Date Filed: 11/27/2019




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

                                                                                 FILED
                                                                            November 27, 2019
                                    No. 18-10704
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERT GILLIAM,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-283-5


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Robert Gilliam was convicted, pursuant to his guilty plea, of conspiring
to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341. The guilty plea
was pursuant to an agreement wherein he waived the right to appeal his
conviction and sentence, reserving only the rights to: (1) bring a direct appeal
of (a) a sentence exceeding the statutory maximum punishment, (b) an upward
departure from the guidelines range, or (c) an arithmetic error at sentencing;


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 18-10704

and (2) bring a claim of ineffective assistance of counsel. The district court
imposed a sentence of 60 months of imprisonment, and it ordered Gilliam to
pay a total of $13,479,407.09 in restitution.
      On appeal, Gilliam claims that the district court committed a reversible,
factual error in determining the amount of loss under U.S.S.G. § 2B1.1. In this
regard, he asserts that there was not sufficient evidence to support the
determination that he was responsible for the entire loss caused by the
conspiracy. Gilliam also claims that his restitution order exceeds the statutory
maximum because he has been punished for a loss that was not the result of
his criminal conduct.    The Government seeks enforcement of the appeal
waiver.
      Our review of the record shows that the appeal waiver was knowing and
voluntary, as Gilliam knew that he had the right to appeal and that he was
giving up that right by entering into the plea agreement. See United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. Portillo, 18 F.3d
290, 292-93 (5th Cir. 1994). Gilliam’s challenge to the § 2B1.1 loss calculation
does not concern a sentence in excess of the statutory maximum, an upward
departure, or an arithmetic error, and therefore does not fall within an
exception to the appeal waiver provision.       See § 371.   Further, Gilliam’s
challenge to the restitution order does not fall within the exception for a
sentence exceeding the statutory maximum punishment because Gilliam does
not argue that the amount awarded as restitution exceeds the victims’ actual
losses. See United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012). Thus,
the valid appeal waiver precludes consideration of these claims. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
      Gilliam also claims that his counsel was ineffective because counsel did
not make certain that the district court was aware of an alternative loss figure



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                                 No. 18-10704

proposed by the Government. The Supreme Court has emphasized that a 28
U.S.C. § 2255 motion is the preferred method for raising claims of ineffective
assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-09 (2003).
Here, as Gilliam did not raise an ineffective assistance claim in the district
court, the record is not sufficiently developed to permit review of the claim on
direct appeal. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014);
United States v. Cervantes, 706 F.3d 603, 621 (5th Cir. 2013). We therefore
decline to consider Gilliam’s ineffective assistance of counsel claim without
prejudice to his right to assert the claim on collateral review. See Isgar, 739
F.3d at 841; United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
      The appeal is DISMISSED.




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