     Case: 13-10828      Document: 00512535366         Page: 1    Date Filed: 02/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 13-10828                                 FILED
                                  Summary Calendar                        February 18, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,
versus

WILLIAM J. LUCK, II,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 3:12-CR-33-1




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       William Luck, II, pleaded guilty of failing to file IRS Form 8300 as


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10828     Document: 00512535366      Page: 2   Date Filed: 02/18/2014


                                  No. 13-10828

required to report a cash transaction in excess of $10,000 and was sentenced
within the guideline range to 37 months in prison. The offense-level calcula-
tion included other transactions as relevant conduct, resulting in a value of
funds totaling $474,714.93 and raising the offense level from 6 to 20. Luck
appeals, claiming for the first time that he was not advised that relevant con-
duct would be used to determine his offense level; thus, he reasons, his guilty
plea was not knowing.
      The government moves to dismiss the appeal or for summary affirmance
on the basis that Luck waived the right to appeal. The government’s reliance
on the waiver is misplaced, however: A waiver does not operate to bar a claim
that a waiver or the plea agreement in which it is set forth was unknowing or
involuntary. See United States v. Carreon-Ibarra, 673 F.3d 358, 362 n.3 (5th
Cir. 2012).
      Nevertheless, we agree with the government that Luck’s challenge to the
knowing nature of his plea is without merit even if we apply the ordinary de
novo standard, see United States v. Washington, 480 F.3d 309, 315 (5th Cir.
2007), rather than plain-error review, see, e.g., United States v. Butler, 637 F.3d
519, 521 (5th Cir. 2011). As Luck acknowledges, a defendant understands the
consequences of his plea if he understands the maximum prison term and fine
he faces. United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996); United
States v. Jones, 905 F.2d 867, 868-69 (5th Cir. 1990). As long as he knows “the
length of time he might possibly receive, he [is] fully aware of his plea’s conse-
quences.”     Jones, 905 F.2d at 868 (internal quotation marks and citation
omitted).
      Luck understood the maximum prison term of five years. Further, he
acknowledged that the probation officer could consider facts other than those
in the factual resume; that Luck could not rely on any estimates or predictions



                                        2
    Case: 13-10828     Document: 00512535366     Page: 3   Date Filed: 02/18/2014


                                  No. 13-10828

by anyone regarding his sentence; and that the sentence would be in the sole
discretion of the court. Therefore, the plea was knowing. See Jones, 905 F.2d
at 868-69; see also United States v. Smallwood, 920 F.2d 1231, 1239 (5th Cir.
1991) (rejecting a similar challenge to a plea). Luck’s contention that we
should order briefing to determine whether to revisit our precedent is unavail-
ing: It is “a firm rule of this circuit that in the absence of an intervening con-
trary or superseding decision by this court sitting en banc or by the United
States Supreme Court, a panel cannot overrule a prior panel’s decision.”
United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010) (internal quotation
marks and citation omitted), aff’d on other grounds, 132 S. Ct. 1463 (2012).
      The motion for summary affirmance is GRANTED. The government’s
alternate motion to dismiss or for an extension of time to file its brief is
DENIED. The judgment is AFFIRMED.




                                        3
