     Case: 17-10249      Document: 00514360372         Page: 1    Date Filed: 02/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-10249
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 23, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DEON BONNER, also known as “Spanish Fly”,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-245-4


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Deon Bonner pleaded guilty, pursuant to a written agreement, to con-
spiracy to commit sex trafficking in violation of 18 U.S.C. § 1594(c). The district
court imposed a within-Guidelines sentence of 360 months’ imprisonment.
Though Bonner waived most of his appeal rights, he preserved three: the rights
“(a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10249

punishment, or (ii) an arithmetic error at sentencing, (b) to challenge the vol-
untariness of his plea of guilty or this waiver, and (c) to bring a claim of inef-
fective assistance of counsel.” This appeal, however, focuses primarily on a
Guidelines question—whether the district court correctly applied U.S.S.G §§
2G1.3, 2X1.1(a), and 3B1.2. In urging us to consider his Guidelines arguments,
Bonner necessarily attacks the validity of his plea and waiver on several fronts.
See United States v. Carreon-Ibarra, 673 F.3d 358, 362 n.3 (5th Cir. 2012) (“[A]
waiver-of-appeal provision . . . cannot be enforced to bar a claim that the waiver
itself—or the plea agreement of which it was a part—was unknowing or invol-
untary.” (quotation marks omitted)). None of Bonner’s arguments prevails.
      A guilty plea must be voluntary, knowing, and intelligent. United States
v. Washington, 480 F.3d 309, 315 (5th Cir. 2007). Bonner must have had notice
of the charges leveled against him and understood the constitutional protec-
tions he would waive by pleading guilty. Id.; accord Fed. R. Crim. P. 11. Simi-
larly, an appeal waiver is valid if it is “knowing and voluntary” and “applies to
the circumstances at hand, based on the plain language of the [plea] agree-
ment.” United States v. Scallon, 683 F.3d 680, 682 (5th Cir. 2012) (quotation
mark omitted). A waiver is knowing and voluntary where the record indicates
that the defendant read and understood the plea agreement, was aware of the
right to appeal, understood that he was giving up that right, and raised no
question concerning the waiver. United States v. Portillo, 18 F.3d 290, 292–93
(5th Cir. 1994). “If the district court accurately explains the terms and conse-
quences of the waiver of appeal and the defendant states on the record that he
understands them, the defendant's later contention that he did not really un-
derstand will not invalidate the waiver.” United States v. Jacobs, 635 F.3d 778,
781 (5th Cir. 2011). Our review here is de novo. See Washington, 480 F.3d at
315; Scallon, 683 F.3d at 682.



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                                 No. 17-10249

      The record confirms that Bonner read and understood his plea agree-
ment, comprehended the nature of the § 1594(c) charge and maximum punish-
ment, was aware of his right to appeal, and understood that he was giving up
that right. See Portillo, 18 F.3d at 292–93; Washington, 480 F.3d at 315–16.
Indeed, his plea agreement stated that the maximum sentence he could receive
was “any term of years of imprisonment up to life.” As for his specific sentence,
Bonner verified that he “reviewed the Guidelines with his attorney” and un-
derstood that “no one” could at rearraignment “predict with certainty the out-
come of the Court’s consideration of the Guidelines in this case.” Bonner agreed
that he would “not be allowed to withdraw his plea” even if his sentence were
“higher than expected.” He further confirmed that “[t]here ha[d] been no guar-
antees or promises from anyone as to what sentence the Court will impose.”
Then, in open court, Bonner stated that he understood the indictment and el-
ements of the offense, the trial rights he was waiving, his plea agreement gen-
erally, and the appeal waiver specifically. Both the plea and waiver are valid.
      Nevertheless, Bonner argues that his plea and waiver were unknowing
and involuntary because the indictment charged him in Count 1 with “Con-
spiracy to Commit Sex Trafficking of Children (Violation of 18 U.S.C. § 1594(c)
(18 U.S.C. § 1591(a)(1) and (a)(2)),” but the factual resume “reflects a plea of
guilty to Count One of the Indictment: Conspiracy to Commit Sex Trafficking
of Children, 18 U.S.C. § 1594(c) (18 U.S.C. § 1591(a) and (b)(2)[)].” This puta-
tive inconsistency, Bonner contends, “deprive[d him] of notice of the charges
against him because 18 U.S.C. § 1591(b)(2) provides for a statutorily mandated
minimum term of imprisonment of ten years, whereas 18 U.S.C. § 1594(c) does
not have a mandated minimum term of years.” But the record reflects that
Bonner pleaded guilty to a violation of 18 U.S.C. § 1594(c) and that he was




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                                         No. 17-10249

correctly subject to a term of up to life in prison; he was not, as he alleges,
subjected to a ten-year mandatory minimum sentence under § 1591(b)(2). 1
       Bonner also contends, without citation to authority, that the handwrit-
ten changes he insisted on appearing in the stipulated facts render his plea
void because the amended sentences are “nonsensical.” We disagree. Bonner’s
proposed (and accepted) revisions simply clarify who his victims were. The
edits do not void the plea.
       Last, Bonner maintains that his plea agreement is invalid because he
did not receive consideration and he did not understand how the Guidelines
would apply to his case. These arguments also fail. Even were consideration
necessary to support a plea, the government provided it by dismissing Count
10 (a substantive § 1591 charge) and pledging not to bring any further charges
against Bonner from the conduct undergirding his conviction. Nor do we find
merit in Bonner’s claim regarding his misunderstanding of the applicable
Guidelines. He acknowledged, both in his plea agreement and at rearraign-
ment, that his plea and agreement were not predicated upon any Guidelines
estimate and that he understood the maximum applicable penalties. Cf. United
States v. Smallwood, 920 F.2d 1231, 1239 (5th Cir. 1991) (“Plea bargains do
not alter how the Guidelines will apply.”); see also Fed. R. Crim. P. 11(b)(1). He
instead averred that he was “waiving [of his] right to appeal or otherwise chal-
lenge [his] sentence,” even though “any discussion concerning the Guidelines”
before sentencing was only “an estimate,” not “a promise as to what those
Guidelines will be.”




       1 Section 1591(b) does not itself create an offense; it instead identifies the two different
punishment schemes for a violation of § 1591(a). Subsection (b)(2) is the less severe one. Bon-
ner’s arguments regarding § 1591(b) actually address the district court’s Guidelines calcula-
tions—a contention that the appeal waiver forecloses.


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                               No. 17-10249

     We dismiss Bonner’s claims of Guidelines error because they fall within
the scope of a valid appeal waiver. See United States v. Story, 439 F.3d 226,
230 n.5 (5th Cir. 2006); United States v. Bond, 414 F.3d 542, 546 (5th Cir.
2005).
     AFFIRMED IN PART; DISMISSED IN PART.




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