     Case: 17-60404      Document: 00514374331         Page: 1    Date Filed: 03/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-60404
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 6, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DAMON DERRALL PITTMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:16-CR-52-1


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Damon Derrall Pittman appeals following his guilty plea conviction of
receiving or possessing a firearm made in violation of Chapter 53 of Title 26 of
the United States Code. He argues that the addition of four offense levels for
trafficking in firearms pursuant to U.S.S.G. § 2K2.1(b)(5), along with the
addition of four offense levels under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a
firearm in connection with another offense, constitutes prohibited double


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60404    Document: 00514374331    Page: 2    Date Filed: 03/06/2018


                                No. 17-60404

counting. Pittman also contends that there was insufficient proof to support
the enhancement for trafficking in firearms under § 2K2.1(b)(5).
      The Government moves to dismiss the appeal or, alternatively, for
summary affirmance based on the appeal waiver in Pittman’s plea agreement.
Pittman’s opening brief did not address the waiver and he has not responded
to the Government’s argument.
      We review de novo whether an appeal waiver bars an appeal. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014).      Pittman’s waiver was
knowing and voluntary as the record shows that he knew he had the right to
appeal and that he was giving up that right by entering the plea agreement.
See United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014). Also, the
waiver plainly applies to his challenge to the application of sentencing
enhancements. See id. Based on our review of the record we are satisfied that
the plea agreement not been breached. See United States v. Reeves, 255 F.3d
208, 210 (5th Cir. 2001).
      Accordingly, we GRANT the Government’s motion to dismiss based on
the appeal waiver and DENY the alternative motion for summary affirmance.
Counsel for Pittman is cautioned that pursuing an appeal contrary to a valid
waiver and without responding to the Government’s invocation of the waiver
is a needless waste of judicial resources and could result in sanctions. See
United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999).
      APPEAL DISMISSED.




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