     Case: 11-51221     Document: 00512035465         Page: 1     Date Filed: 10/29/2012




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

                                                                            FILED
                                                                         October 29, 2012
                                     No. 11-51221
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

STEVEN CANTRELL, also known as Steven Scott Cantrell,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 7:11-CR-294-1


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
        Steven Cantrell pleaded guilty to damage or destruction of real religious
property (count one), use of fire to commit damage or destruction of real religious
property (count two), interfering with housing (count three), and arson (count
four). He was sentenced to 330 months on count one and a statutorily mandated
consecutive term of imprisonment of 120 months on count two. Cantrell received
concurrent terms of 120 months and 240 months of imprisonment on the
remaining counts, resulting in a total sentence of 450 months of imprisonment,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51221    Document: 00512035465      Page: 2   Date Filed: 10/29/2012

                                  No. 11-51221

to be followed by five years of supervised release. Cantrell appeals his conviction
and sentence.
      Mischaracterizing his conviction on count one as an arson conviction,
Cantrell argues that his sentences on count one and count two are multiplicitous
in violation of the prohibition against double jeopardy and therefore constitute
an arithmetical error. Cantrell pleaded guilty pursuant to a plea agreement
wherein he waived his right to appeal his conviction and sentence. However, he
reserved the right to appeal a sentence in excess of the statutory maximum or
an arithmetical error that occurred at sentencing. He further reserved the right
to challenge the voluntariness of the plea or waiver and the effective assistance
of counsel.
      The Government invokes the appeal waiver and asserts that Cantrell’s
challenge to his sentence is barred from appellate review. The record shows that
Cantrell’s appeal waiver is valid. See United States v. McKinney, 406 F.3d 744,
746 (5th Cir. 2005). Cantrell’s constitutional challenge to his sentence on
grounds of double jeopardy is not a claim involving arithmetical error and is
therefore barred by the waiver. See United States v. Story, 439 F.3d 226, 231
(5th Cir. 2006); United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      Cantrell also argues that his guilty plea was unknowing and involuntary
because the district court erroneously informed him that he faced a mandatory
consecutive sentence of 10 years of imprisonment on count two. He asserts that
the court misspoke and informed him that the sentence would run consecutive
to “any penalty imposed for that conviction,” referencing his conviction on count
two rather than count one. He also attempts to challenge the validity of the
sentence in this claim, arguing that the court’s information regarding the
consecutive 10-year sentence was erroneous because such a sentence would
violate his protection against double jeopardy.       As previously stated, any
challenge to his sentence on grounds of double jeopardy is barred by the appeal
waiver.

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                                 No. 11-51221

      He did not object to the alleged violation of Federal Rule of Criminal
Procedure 11 in the district court, and thus his argument is reviewed for plain
error. See United States v. Vonn, 535 U.S. 55, 59 (2002). At the rearraignment
proceeding, the district court informed Cantrell that he faced a maximum
possible sentence of life imprisonment on count one and a mandatory consecutive
term of ten years of imprisonment on count two. Although the district court
made a slight mistake in phrasing, there is no indication that Cantrell was
unaware of the maximum sentences he faced. Moreover, Cantrell fails to show
that there is a reasonable probability that he would not have pleaded guilty but
for this alleged error. See United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004).
      Accordingly, the judgment of the district court is AFFIRMED.




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