     Case: 15-50109      Document: 00513259307         Page: 1    Date Filed: 11/04/2015




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

                                                                                  FILED
                                                                             November 4, 2015
                                    No. 15-50109
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL DEWAYNE LANE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:14-CR-185-2


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Michael DeWayne Lane pleaded guilty to conspiracy to possess with
intent to distribute more than 50 grams of methamphetamine, pursuant to a
written plea agreement that incorporated an appeal waiver.                     Lane now
challenges the factual basis supporting his guilty plea and the application of a
U.S.S.G. § 2D1.1(b)(1) weapons enhancement.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-50109

      Although Lane’s appeal waiver does not bar review of his claim that the
factual basis of his guilty plea is insufficient, we review for plain error because
Lane did not challenge the factual basis for his plea in the district court. See
United States v. Trejo, 610 F.3d 308, 312-13 (5th Cir. 2010). To show plain
error, Lane must show that the error was clear or obvious and affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks and citation omitted).
      “[A] district court taking a guilty plea [must] make certain that the
factual conduct admitted by the defendant is sufficient as a matter of law to
establish a violation of the statute to which he entered his plea.” Trejo, 610
F.3d at 313 (emphasis in the original). The factual basis must be “sufficiently
specific to enable the district court to compare the conduct admitted by the
defendant with the elements of the offense charged.” Id.
      “The essential elements of a drug conspiracy are (1) an agreement by two
or more persons to violate the narcotics laws; (2) a defendant’s knowledge of
the agreement; and (3) his voluntary participation in the agreement.” United
States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014).           Lane’s sole
argument is that the Government failed to allege, or to adduce any evidence
of, the existence of an agreement. He argues that the evidence establishes only
that he engaged in distribution, that his relationship with James LeRoy May
was that of buyer and seller, and that he and Kimberly Sue Davis, his common
law wife, independently sold methamphetamine.
      The undisputed facts in the record show that Lane and Davis, a common
law married couple, lived in the same home, kept drugs in a shared location in
their home, and sold drugs to the same person, May. Based upon these facts,



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                                 No. 15-50109

the district court could reasonably infer that Lane and Davis agreed to jointly
supply May with methamphetamine.           See United States v. Hernandez-
Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988) (“[T]he trier of fact may infer
agreement from circumstantial evidence.”). Thus, the district court did not
plainly err in finding that Lane’s plea to conspiracy to distribute
methamphetamine was supported by facts sufficient to establish each element
of the charged offense.
      Lane’s plea agreement included a provision that waived his right to
appeal or collaterally attack his sentence on any grounds other than ineffective
assistance of counsel or prosecutorial misconduct of a constitutional
dimension. We review the validity and enforceability of an appeal waiver de
novo. See United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The
court will enforce the waiver if it was agreed to knowingly and voluntarily. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Lane’s response
to the Government’s invocation of the appeal waiver is meritless, and Lane has
waived any argument that his waiver was neither knowing nor voluntary by
not briefing it. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000). Accordingly, the appeal waiver is valid and bars Lane’s challenge to the
sentencing enhancement.
            AFFIRMED.




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