   Case: 10-50652       Document: 00511587969         Page: 1     Date Filed: 08/30/2011




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

                                                                            FILED
                                                                          August 30, 2011
                                       No. 10-50652
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

DAVID MICHAEL STANSON,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 5:09-CR-124




Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       David Stanson appeals his sentence for distribution of child pornography.
Because the appeal is barred by the plea agreement, we dismiss the appeal.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50652

                                         I.
      Stanson pleaded guilty of distribution of child pornography in violation of
18 U.S.C. § 2252(a)(2). The plea agreement included a waiver of his right to
appeal his sentence. The district court discussed the plea agreement with
Stanson:

      THE COURT: Okay. And have you gone through this plea agree-
      ment; do you understand all of your constitutional rights that are
      listed in the plea agreement?

      THE DEFENDANT: Yes, sir.

      THE COURT: In order to hope that you are not sentenced to the
      maximum of 25 years, are you willing to give up those constitutional
      rights of trial by jury, burden of proof on the government, cross-
      examination by Mr. Carter of the live witnesses against you and
      your rights direct and indirect appeal?

      THE DEFENDANT: Yes, sir. I thought it was 20 years, sir.

      THE COURT: I’m sorry. You may be right. 20 years. You’re right.

      Stanson was assessed a five-level enhancement pursuant to United States
Sentencing Guidelines § 2G2.2(b)(3)(B) (“the distribution enhancement”), which
provides for an enhancement where a defendant distributed child pornography
“for the receipt, or expectation of receipt, of a thing of value, but not for pecuni-
ary gain.” Stanson challenges the application of the enhancement on the ground
that the peer-to-peer file sharing program he usedSSLimewireSSprovides no tan-
gible benefit to a user who chooses to share his own file collection with other
users, as Stanson did. Stanson also argues that he did not knowingly and volun-
tarily waive the right to appeal his sentence.




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                                  No. 10-50652

                                        II.
      We review the validity of an appeal waiver de novo. United States v.
Burns, 433 F.3d 442, 445 (5th Cir. 2005). A defendant may waive his right to
appeal if the waiver is made knowingly and voluntarily. United States v. McKin-
ney, 406 F.3d 744, 746 (5th Cir. 2005). “A defendant must know that he had a
right to appeal his sentence and that he was giving up that right.” United States
v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quotation marks and citation omit-
ted). A defendant’s waiver is knowing and voluntary if he indicates that he has
read and understood the plea agreement, which contains an “explicit, unambigu-
ous waiver of appeal.” McKinney, 406 F.3d at 746. If the record “clearly indi-
cates that a defendant has read and understands his plea agreement, and that
he has raised no question regarding a waiver-of-appeal provision, the defendant
will be held to the bargain to which he agreed, regardless of whether the court
specifically admonished him concerning the waiver of appeal.” Id. (quotation
marks and citation omitted).


                                       III.
      Stanson does not dispute that the plain text of the plea agreement includes
a waiver of the right to appeal his sentence. Rather, he contends that the dis-
trict court failed adequately to ascertain whether he had read and understood
the appeal waiver provision; as a result of the court’s failure, Stanson argues, he
did not knowingly and voluntarily waive the right to appeal his sentence.
      The record does not support Stanson’s assertions. He was asked directly
by the district court whether he had “gone through this plea agreement” and
whether he was “willing to give up those constitutional rights of trial by jury,
burden of proof on the government, cross-examination by Mr. Carter of the live
witnesses against you and your rights direct and indirect appeal?” Stanson
responded to each question with an unequivocal “Yes, sir.” Although the court

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                                  No. 10-50652

did not mechanically ask Stanson whether he had read the plea agreement and
understood its terms, the essence of that inquiry was made.
      Furthermore, the record as a whole “clearly indicates that [Stanson] has
read and understands his plea agreement, and that he has raised no question
regarding a waiver-of-appeal provision.” Id. The district court sufficiently
inquired whether Stanson had read and understood the terms of the agreement,
including the fact that he was waiving his right to appeal. Stanson’s response
that he agreed to the factual basis set forth in the agreement, as well as the fact
that he spoke up to correct the court as to the maximum sentence he faced under
the agreement, indicates that he had read and understood the agreement.
      Stanson also attempts to parse the precise language employed by the
court, arguing that the court asked only whether he understood the constitu-
tional rights that he was giving up—and not his statutory right to challenge his
sentence on appeal. As an initial matter, this does not alter our conclusion that
the record as a whole indicates that Stanson read and understood the plea agree-
ment, including the waiver-of-appeal provision.
      Additionally, even if we were to accept Stanson’s hyper-textualist
approach, his conclusion that he was questioned only about his constitutional
rights does not necessarily follow. The precise question posed by the court was
the following:

      In order to hope that you are not sentenced to the maximum of 25
      years, are you willing to give up those constitutional rights of trial
      by jury, burden of proof on the government, cross-examination by
      Mr. Carter of the live witnesses against you and your rights direct
      and indirect appeal?

      Stanson argues that the phrase “rights direct and indirect appeal” relate
back to the phrase “constitutional rights.” That is not, however, the best reading
of the question. Given the repeated use of the word “rights,” the rational reading


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                                  No. 10-50652

of the text is that Stanson was asked about both his constitutional rights and his
additional rights of direct and indirect appeal—otherwise the second use of the
word “rights” would be superfluous.
      Accordingly, Stanson’s appeal is barred by the terms of his plea agree-
ment, and we do not reach the issue of whether the distribution enhancement
was properly applied. The appeal is DISMISSED.




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