     Case: 16-50952      Document: 00514060169         Page: 1    Date Filed: 07/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-50952
                                                                                  Fifth Circuit


                                  Summary Calendar
                                                                                FILED
                                                                             July 5, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

REYNOLD MURRELL, also known as Rennie Murrell,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:13-CR-846-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       In accordance with a written plea agreement, Defendant-Appellant
Reynold Murrell, aka Rennie Murrell, pleaded guilty to distributing child
pornography. He waived his appeal rights in his plea agreement, but he
contends that the waiver no longer bars his attack on his 220-month sentence
because the government breached the plea agreement.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50952     Document: 00514060169    Page: 2      Date Filed: 07/05/2017


                                 No. 16-50952

      In that agreement, the government agreed not to recommend a five-level
increase for distribution in exchange for a thing of value. Several months later,
the government objected to the presentence report by arguing in favor of the
five-level increase. However, at sentencing, Murrell’s attorney reminded the
government of that part of the plea agreement, after which the government
apologized, withdrew its objection, and agreed that a lesser increase was
specified in the agreement. The court then applied the lesser increase.
      We need not decide whether Murrell adequately objected to preserve his
claim for de novo appellate review. Even if we were to apply de novo review,
we would find that the government initially breached the agreement but then
“cured its breach by withdrawing its objection and urging the application of
the lesser enhancement.” United States v. Purser, 747 F.3d 284, 294 (5th Cir.
2014); see Puckett v. United States, 556 U.S. 129, 140 (2009) (noting that a
breach is curable if the government simply forgot its commitment but was
willing to abide by the agreement when reminded). Consequently, the timely
corrected agreement did not invalidate Murrell’s waiver of his right to appeal.
      Murrell’s appeal waiver is otherwise knowing and voluntary because he
was properly advised that he was giving up his right to appeal. See United
States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011); FED. R. CRIM.
P. 11(b)(1))(N).     Murrell   cannot   show    that   the    sentencing    court’s
misstatements about his right to appeal, made in passing almost two years
after the plea, could have affected his decision to plead guilty or to waive his
right to appeal. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir.
1992). Murrell’s appeal waiver is valid, so we need not address his challenges
to his sentence. His appeal is therefore DISMISSED. See Purser, 747 F.3d at
294-95; 5TH CIR. R. 42.2.




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