    Case: 17-60133   Document: 00514827715     Page: 1   Date Filed: 02/08/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 17-60133                United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                                                            February 8, 2019
                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                          Clerk


                 Plaintiff–Appellee,

versus

TERRY KELLY, Also Known as T.K.,

                 Defendant–Appellant.




                Appeal from the United States District Court
                  for the Northern District of Mississippi




Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Terry Kelly pleaded guilty of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) and enhanced per the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e) (2012). As part of his plea agreement, Kelly
agreed to an appeal waiver, yet he appeals.

     Kelly raises two issues. First, he asserts that the district court plainly
erred in applying the ACCA enhancement because he lacks the requisite
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                                      No. 17-60133
number of violent felony predicates. Second, he claims that he received in-
effective assistance of counsel (“IAC”), resulting in an increased term of impris-
onment. Because Kelly’s ACCA enhancement claim is barred by his appeal
waiver and his IAC claim is not ripe for review on direct appeal, we dismiss
the appeal as to both claims.

                                             I.
       Police searched Kelly’s house after receiving information that stolen
property might be there. During the search, officers discovered that Kelly, a
convicted felon, was in possession of two rifles, hence the indictment. 1

       Kelly and his lawyer signed a plea agreement in which he agreed to plead
guilty to the one-count indictment in exchange for the government’s agreement
“not to charge [him] with any other offenses known by the [g]overnment arising
from or related to the above charges.” As part of the deal, Kelly agreed to a
waiver of appeals and collateral attacks, which stated,
       WAIVER OF APPEALS AND COLLATERAL ATTACKS: Defen-
       dant hereby expressly waives any and all rights to appeal the con-
       viction in this case, on any ground whatsoever, including but not
       limited to the grounds set forth in 18 U.S.C. § 3742. Defendant
       also hereby expressly waives all rights to contest or collaterally at-
       tack the conviction in any post-conviction proceeding, including
       but not limited to a motion brought pursuant to 28 U.S.C. § 2255,
       excepting only allegations of ineffective assistance of counsel and
       prosecutorial misconduct. Defendant waives these rights in ex-
       change for the concessions and recommendations made by the
       United States in this plea agreement.
       The district court held a Rule 11 plea hearing. In addition to discussing
the charge and the related enhancement, the court emphasized Kelly’s appeal



       1 See 18 U.S.C. §§ 922(g)(1), 924(e). The indictment listed three of Kelly’s previous
felony convictions, including burglary of a dwelling, burglary, and shooting into an occupied
dwelling.
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                                        No. 17-60133
waiver: “[D]o you, in particular, understand that by entering into the Plea
Agreement and entering a guilty plea, you will waive all rights to appeal your
conviction on any ground and to collaterally attack your conviction except for
allegations of ineffective assistance of counsel and prosecutorial misconduct?”
Kelly answered in the affirmative (“Yes, ma’am.”), acknowledging that he
understood his plea agreement and the related appeal waiver.

       After the guilty plea, the government filed a U.S.S.G. § 5K1.1 motion on
behalf of Kelly for his substantial assistance with a RICO investigation against
the Aryan Brotherhood of Mississippi. 2 The district court granted the § 5K1.1
motion and imposed a 100-month term of imprisonment plus five years of
supervised release. The sentence imposed was below both the ACCA minimum
of fifteen years and the recommended guideline range of 180 to 188 months.
At sentencing, Kelly again affirmed that he “expressly waive[d] any and all
rights” to appeal or collaterally attack “the conviction or sentence imposed
. . . except [as] to claims relating to prosecutorial misconduct and ineffective
assistance of counsel relating to the validity of the waiver of appeal or the
validity of the guilty plea itself.”

       After sentencing, however, Kelly raised an IAC claim, which prompted
his trial counsel to withdraw. This court assigned the Federal Public Defender
to represent Kelly on appeal and granted Kelly’s unopposed motion for leave
to file an untimely notice of appeal.

                                               II.
       Kelly raises two issues on appeal. First, he asserts that the district court


       2 In its § 5K1.1 motion, the government noted that, inter alia, “Kelly showed courage
by sitting on the stand across from two individuals who had the authority within [the Aryan
Brotherhood of Mississippi] to order that he be killed. And he testified truthfully and pro-
vided the government with substantial assistance . . . in secur[ing] conviction at that trial for
the two defendants who [Kelly] testified against.”
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                                 No. 17-60133
plainly erred in applying the ACCA enhancement. Second, he claims IAC.
Before analyzing either claim, we must address the applicability and scope of
the appeal waiver.

                                      A.
      “This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). “A criminal defendant
may waive his statutory right to appeal in a valid plea agreement.” United
States v. Pleitez, 876 F.3d 150, 156 (5th Cir. 2017). When deciding “whether
an appeal of a sentence is barred by an appeal waiver provision in a plea agree-
ment, 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).

      For a 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) (quoting
United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992)). Moreover, “[a]
waiver is both knowing and voluntary if the defendant indicates that he read
and understood the agreement and the agreement contains an ‘explicit, un-
ambiguous waiver of appeal.’” Keele, 755 F.3d at 754 (quoting United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005)). But, as acknowledged in the
plea agreement, “a defendant may always avoid a waiver on the limited
grounds that the waiver of appeal itself was tainted by [IAC].” United States
v. White, 307 F.3d 336, 339 (5th Cir. 2002).

      “We apply normal principles of contract interpretation when construing




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                                      No. 17-60133
plea agreements.” 3 When determining “whether an appeal waiver applies to
the issues presented, this [c]ourt ‘ascertain[s] the ordinary meaning of the
waiver provision,’” Pleitez, 876 F.3d at 156 (quoting United States v. Jacobs,
635 F.3d 778, 781 (5th Cir. 2011)), and “construe[s] appeal waivers narrowly
. . . against the government,” id. (quoting United States v. Palmer, 456 F.3d
484, 488 (5th Cir. 2006)). Nonetheless, “[t]he government has a strong and
legitimate interest in both the finality of convictions and in the enforcement of
plea bargains.” United States v. Dyer, 136 F.3d 417, 429 (5th Cir. 1998).

                                             B.
       With respect to his ACCA claim, Kelly concedes in his reply brief that
“there is a strong presumption for finding the waiver enforceable, as he . . .
knowingly and voluntarily plea[ded] guilty and the language in the plea is suf-
ficiently clear.” Kelly, however, tempers this admission by further asserting
that “he would not have [pleaded] guilty had he known there was a potential
challenge” to the ACCA enhancement under recent Supreme Court caselaw.
Accordingly, Kelly contends that he “knowingly and voluntarily agreed to plead
guilty, but only under the premise that there were no meritorious arguments
to be made regarding the ACCA enhancement.”

       In response, the government asserts that the waiver (1) was knowing
and voluntary and (2) bars the ACCA issue Kelly raises on appeal. The govern-
ment maintains that “[w]here the plea agreement contains an unambiguous
waiver signed by the defendant, and the defendant states during the Rule 11
plea colloquy that he has read and understood [the] agreement, the waiver is
considered knowing and voluntary.” The government further asserts that


       3 McKinney, 406 F.3d at 746; see also United States v. Cantu, 185 F.3d 298, 304 (5th
Cir. 1999) (“[W]e apply general principles of contract law in order to interpret the terms of
the plea agreement.”).
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                                       No. 17-60133
Kelly knew that “he had a right to appeal his sentence and that he was giving
up that right” (quoting Portillo, 18 F.3d at 292). The government posits that
“[i]t is plain, based on his signing the plea agreement and his two declarations
to the district judge, that Kelly was well aware of his right to appeal and vol-
untarily waived that right.” 4

       Turning to the second prong, the government claims that “[Kelly’s] chal-
lenge to the ACCA enhancement is clearly barred because it does not fall
within the Fifth Circuit’s exceptions to enforcement of a validly executed
waiver.” 5 Consequently, the waiver is enforceable and bars Kelly’s appeal of
this issue.

       We must determine whether Kelly’s waiver was knowing and voluntary
and “whether the waiver applies to the circumstances at hand, based on the
plain language of the plea agreement.” McKinney, 406 F.3d at 746. The waiver
says that “[d]efendant hereby expressly waives any and all rights to appeal the
conviction in this case, on any ground whatsoever . . . .” 6 At the plea hearing,
the court asked Kelly whether he “underst[ood] that by entering into the Plea
Agreement and entering a guilty plea, [he] waive[d] all rights to appeal [his]
conviction on any ground and to collaterally attack [his] conviction except for
allegations of ineffective assistance of counsel and prosecutorial misconduct.” 7
Kelly replied, “Yes, ma’am.”



       4 See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity.”).
       5 The government concedes, however, that Kelly’s IAC claim is not barred by this
court’s precedent, but “only to the extent that his claim challenges the validity of [the]
waiver.”
       6The waiver further states that “[d]efendant waives these rights in exchange for the
concessions and recommendations made by the United States in this plea agreement.”
       7 Kelly also answered affirmatively when asked whether he “underst[ood] the terms
of the Plea Agreement and the Plea Supplement.”
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                                     No. 17-60133
      At the sentencing hearing, the court again discussed, at some length, the
scope and terms of Kelly’s appeal waiver, stating,
      The defendant expressly waives any and all rights to appeal the
      conviction or sentence imposed in this case, pursuant to his Plea
      Agreement, and the manner in which sentence was imposed on any
      ground whatsoever, including, but not limited to, the grounds set
      forth in [18 U.S.C. § 3742] except [as] to claims relating to prose-
      cutorial misconduct and [IAC] relating to the validity of the waiver
      of appeal or the validity of the guilty plea itself. The defendant
      also expressly waives all rights to contest or collaterally attack the
      conviction and/or sentence and the manner in which the sentence
      was imposed in any post-conviction proceeding, including, but not
      limited to, a motion brought pursuant to [28 U.S.C. § 2255] except
      [as] to claims relating to prosecutorial misconduct and [IAC]
      relating to the validity of the waiver of appeal or the validity of the
      guilty plea itself.
The district court next asked Kelly whether he understood his sentence as spe-
cified by the court. Again, Kelly affirmatively acknowledged his understanding
of the sentence (including the related terms of his plea agreement) by stating
“Yes, ma’am.” 8

      Kelly’s waiver was both knowing and voluntary because the record dem-
onstrates that “he [both] read and understood the agreement, which include[d]
an explicit, unambiguous waiver of appeal.” Bond, 414 F.3d at 544; see also
Keele, 755 F.3d at 754–56; McKinney, 406 F.3d at 746. Moreover, the waiver
applies to all of Kelly’s potential claims—including a challenge to the applica-
tion of the ACCA enhancement—except those concerning prosecutorial mis-
conduct or IAC. Accordingly, although Kelly may not pursue his ACCA claim—
it is barred by the clear terms of his appeal waiver—he may appeal his IAC
claim, under the terms of the plea agreement, and under this court’s precedent



      8   Kelly also confirmed that he did not “have any questions about any matter related
to [his] sentence or any part of [the sentencing] proceeding.”
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that “a defendant may always avoid a waiver on the limited grounds that the
waiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see also
United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).

                                               III.
                                                A.
       In Strickland v. Washington, 466 U.S. 668, 687−96 (1984), the Court out-
lined a two-pronged test for determining whether counsel’s performance was
ineffective. 9   First, “[w]hen a convicted defendant complains of [IAC], the
defendant must show that counsel’s representation fell below an objective stan-
dard of reasonableness.” Id. at 687−88. Second, “any deficiencies in counsel’s
performance must be prejudicial to the defense in order to constitute [IAC]
under the Constitution.” Id. at 692. Nonetheless, “[b]ecause of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance . . . .” Id. at 689. 10 A defendant’s right to effective assistance of
counsel extends to the plea-bargaining process. 11

       “[A] defendant may always avoid a waiver on the limited grounds that
the waiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see
also Henderson, 72 F.3d at 465. Nonetheless, “[t]he general rule in this circuit



       9  See also Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (“A defendant’s Sixth Amendment
right to counsel is violated if: (1) his counsel’s performance was deficient; and (2) the deficient
performance prejudiced his defense.”).
       10“A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Washington, 466 U.S. at 689.
       11 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (“During plea negotiations defendants are
‘entitled to the effective assistance of competent counsel.’” (quoting McMann v. Richardson,
397 U.S. 759, 771 (1970))); see also Missouri v. Frye, 566 U.S. 134, 140–44 (2012).
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is that a claim of [IAC] cannot be resolved on direct appeal when the claim has
not been raised before the district court since no opportunity existed to develop
the record on the merits of the allegations.” United States v. Higdon, 832 F.2d
312, 313–14 (5th Cir. 1987); see also Gulley, 526 F.3d at 821. Consequently,
“[o]nly in those rare occasions where the record is sufficiently developed will
[this] court undertake to consider claims of inadequate representation on direct
appeal.” Gulley, 526 F.3d at 821. Ultimately, unless we can “fairly evaluate
the claim from the record, we must decline to consider the issue without preju-
dice to a defendant’s right to raise it in a subsequent proceeding.” Id. 12

                                               B.
       Kelly contends that “[t]his is one of those rare cases” in which the record
is sufficiently developed to allow us to reach the merits of his IAC claim on
direct appeal. Turning to the Washington factors, Kelly asserts that “[t]he
mere failure [of trial counsel] to challenge [his] prior convictions post-Johnson
and Mathis was deficient performance and severely prejudiced [him].” Kelly
further maintains that “[f]ailing to keep current on Supreme Court cases and
relevant circuit court precedent is deficient performance,” especially given that
both precedents “were easily accessible and gravely important to challenging
the ACCA enhancement.” 13 Accordingly, “[n]o sound trial strategy can be rea-
soned for not objecting to the [ACCA] enhancement at the infancy of the case
or at sentencing,” and his trial counsel’s performance should be deemed defici-
ent because “it falls below an objective standard of reasonableness.”

       Kelly also asserts that he was prejudiced by his counsel’s deficient


       12See also United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“We
do not review a claim of [IAC] on direct appeal unless the district court has first addressed it
or unless the record is sufficiently developed to allow us to evaluate the claim on its merits.”).
       13Kelly notes that Johnson was released before both his change-of-plea hearing and
sentencing, while Mathis was released before sentencing.
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                                       No. 17-60133
performance. He acknowledges that he “bears the burden of demonstrating
. . . ‘there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial’” (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Kelly maintains that had the ACCA
enhancement not been applied, “he would have faced a substantially lower
guidelines range which would have led to a plea agreement without the ACCA
enhancement.” Kelly claims that “[i]nstead of a fifteen-year mandatory mini-
mum and a suggested [g]uidelines range of 180–188 months,” he would have
faced a range of 46–57 months even before the court granted the § 5K1.1
motion. 14 Moreover, had his trial counsel been effective, “Kelly would have
been able to preserve his objection to the [ACCA] enhancement,” thereby also
providing the benefit of de novo, rather than plain error, review.

       In response, the government contends that the record in the district
court is insufficient to determine whether trial counsel’s plea strategy was
sound. Highlighting circuit precedent, the government maintains that “[i]f
[this] [c]ourt cannot make the determination on the record before it, it should
dismiss the claim without prejudice and allow the defendant to raise it in
another proceeding where the record can be developed.” “[F]ar from being a
rare case ripe for direct review,” the government asserts that “Kelly’s [IAC]
claim begs for further factual development.”

       The government likewise challenges the assumption that “had [Kelly’s]
counsel raised the issues he now [raises] on appeal, he would have gotten a
better result,” contending that such an approach “overlooks a variety of



       14The government disputes this claim, maintaining that “[t]here are . . . uncertainties
as to what Kelly’s guideline range would be if he was not a violent offender under the ACCA.
Kelly recalculates his guideline range assuming that both of his violent felonies should be
discounted; however, if [only] one violent felony is discounted . . . then his guideline range
would be higher than he estimates.”
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                                  No. 17-60133
practical considerations that may have affected his sentence.” Ultimately, the
government maintains that “the [c]ourt can only speculate as to why Kelly’s
counsel chose not to object to the ACCA enhancement” and urges that we “dis-
miss [the IAC] claim without prejudice [so that] Kelly [may] pursue it in the
trial court.”

      At bottom, Kelly’s IAC claim was not sufficiently developed. Although
he raised the issue in a pro se habeas corpus petition that he filed in the district
court after sentencing, the court dismissed it without prejudice for lack of jur-
isdiction because “Kelly’s direct appeal [was] pending.” The court did not hold
a hearing on the claim.

      Ultimately, much like the defendant in Gulley, Kelly’s “claim is not ripe
for review because ‘the district court did not hold a hearing and the record does
not provide sufficient detail about trial counsel’s conduct and motivations to
allow this court to make a fair evaluation of the merits of [his] claim.’” Gulley,
526 F.3d at 821 (quoting United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.
2007)). Here, as in Higdon, 832 F.3d at 314, we “can only speculate on the
basis for defense counsel’s actions” because there is no discussion in the record
concerning trial counsel’s rationale for making his strategic choices, including
the decision not to challenge the ACCA enhancement. Accordingly, Kelly’s IAC
claim is not ripe for review on direct appeal.

      In sum, because Kelly’s ACCA enhancement claim is barred by the
appeal waiver, and his IAC claim is not ripe for review on direct appeal, the
appeal is DISMISSED, but without prejudice to Kelly’s right to raise IAC on
collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).




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