     Case: 18-40966      Document: 00515040044         Page: 1    Date Filed: 07/18/2019




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

                                                                                FILED
                                    No. 18-40966                            July 18, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KEYONTA MONQUAN JOHNSON, also known as KeKe,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:17-CR-72-3


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea
agreement, Keyonta Monquan Johnson pleaded guilty to distribution of
methamphetamine near a playground, in violation of 21 U.S.C. §§ 841(a)(1),
860(a), stipulating to a sentence of 100 months of imprisonment and eight
years of supervised release.         Johnson also waived his right to appeal or
collaterally attack his conviction and sentence, but he reserved the right to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40966    Document: 00515040044     Page: 2   Date Filed: 07/18/2019


                                 No. 18-40966

appeal a claim of ineffective assistance of counsel or, if the district court
accepted the agreement, a sentence that did not comply with the Rule
11(c)(1)(C) agreement.
      On appeal, Johnson argues that the district court (1) abused its
discretion by refusing to allow him to withdraw his guilty plea and
(2) impermissibly broadened his sentence by imposing conditions of supervised
release in the written judgment that were not pronounced orally at the
sentencing hearing. In lieu of filing a brief, the Government filed a motion for
summary dismissal, seeking enforcement of the appeal waiver, or, in the
alternative, for an extension of time to file its brief. Johnson erroneously
claims that he filed a motion to withdraw his guilty plea. However, the record
clearly indicates that no motion to withdraw the plea was filed; thus, we
consider only whether the appellate waiver bars Johnson’s challenge to his
sentence.
      A defendant may waive the statutory right to appeal in a valid plea
agreement. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
“This court reviews de novo whether an appeal waiver bars an appeal.” United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In so doing, this court
“conduct[s] a two-step inquiry: (1) whether the waiver was knowing and
voluntary and (2) whether the waiver applies to the circumstances at hand,
based on the plain language of the agreement.” United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005). In this case, the record demonstrates that
Johnson knowingly and voluntarily waived his right to appeal and the
appellate waiver applies in this circumstance. See United States v. Higgins,
739 F.3d 733, 737-39 (5th Cir. 2014); United States v. Alvarado-Casas, 715 F.3d
945, 955-56 (5th Cir. 2013). Despite Johnson’s arguments to the contrary, he




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                               No. 18-40966

has identified no fundamental defect in the proceedings that he reserved the
right to challenge.
      Accordingly, the Government’s motion for summary dismissal is
GRANTED, and the appeal is DISMISSED. The Government’s alternative
motion for an extension of time is DENIED as moot.




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