     Case: 12-30350   Document: 00512276669   Page: 1   Date Filed: 06/17/2013




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

                                                                 FILED
                                                                June 17, 2013
                              No. 12-30350
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

RUSSELL DAVIS, also known as Face Davis, also known as Russell White,

                                         Defendant - Appellant

Cons. w/ No. 12-30352

UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

ANTHONY DAVIS, also known as Anthony White,

                                         Defendant - Appellant



                Appeals from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:11-CR-70-3
                           USDC No. 2:11-CR-70-2
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                                      No. 12-30350
                                    c/w No. 12-30352

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Anthony Davis and his brother Russell Davis were charged in a multi-
count indictment. Each entered a guilty plea pursuant to a written agreement.
       Anthony Davis was convicted of distributing heroin and aiding and
abetting the distribution and possession, with intent to distribute, cocaine base
(crack), in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1). On
three counts, he was subject to a statutory maximum sentence of 30 years’
imprisonment; another count included a statutory mandatory minimum
sentence of ten years and maximum term of life. His advisory Sentencing
Guidelines sentence was 120 months, the statutory mandatory minimum. The
district court departed upwardly, pursuant to Guideline § 4A1.3(a) (upward
departure may be warranted where reliable information indicates defendant’s
criminal history category substantially under-represents seriousness of
defendant’s criminal history or likelihood defendant will commit other crimes),
and sentenced Anthony Davis to 168 months’ imprisonment, consisting of
concurrent terms of 71 months’ imprisonment for three counts, and 168 months
for the other count.
       Russell Davis also pleaded guilty to aiding and abetting the distribution
and possession, with intent to distribute, cocaine base (crack), in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1). On two counts, he was subject
to a statutory maximum sentence of 30 years’ imprisonment; three other counts
included a statutory mandatory minimum sentence of ten years’ imprisonment
and maximum term of life imprisonment. His advisory Sentencing Guidelines
range was 120 to 125 months. The district court departed upwardly and


       *
         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. 12-30350
                                c/w No. 12-30352

sentenced Russell Davis to 125 months for two counts, and 180 months for three
other counts, to be served concurrently.
      The defendants’ plea agreements were identical with the exception of the
particular counts to which each pleaded guilty and the references to the
penalties for those counts. The agreements contained the same waivers of the
right to appeal their sentences directly, and the same exceptions to the waivers.
Excepted from the waivers were the rights: (1) to appeal directly any sentence
imposed in excess of the statutory maximum; and (2) to pursue a post-conviction
challenge in the event either defendant established ineffective assistance of
counsel directly affected the validity of the waiver or plea.
      In various challenges to the validity of their waivers, Anthony and Russell
Davis contend, inter alia: there was a failure of consideration because neither
received what he, or the Government, reasonably expected upon entering their
plea agreements; and their appeal waivers violate due process and are contrary
to public policy because the Guidelines no longer constrain a district court’s
discretion, and the waivers foreclose review of any sentence under the statutory
maximum. Acknowledging our court has enforced waivers as broad as theirs,
they assert this is an important issue deserving renewed analysis. They posit
this court’s endorsement of broad appeal waivers such as theirs is erroneous
because its initial endorsement of an appeal waiver stems from United States v.
Sierra, No. 91-4342, slip op. at 2 (5th Cir. 6 Dec. 1991). See United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992). They contend Sierra is inapposite
because that waiver was limited by a cap on the sentence defendant could
receive.
      According to Anthony and Russell Davis, our court has never had occasion
to determine whether a defendant can knowingly waive the right to appeal a
sentence when he is sentenced contrary to the district court’s assurances. They
contend the concurrence in Melancon addressed this question. They seek re-

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                                   No. 12-30350
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examination of the validity of broad appeal waivers because of intervening
changes in federal sentencing law subsequent to United States v. Booker, 543
U.S. 220 (2005), holding the Guidelines are advisory. Finally, they assert the
enforcement of broad appeal waivers promotes significant geographical
disparities in sentencing that violate due process and public policy.
      The validity of an appeal waiver is reviewed de novo. United States v.
Scallon, 683 F.3d 680, 682 (5th Cir. 2012), petition for cert. filed, (Nov. 21, 2012)
(No. 12-7518). “A defendant may waive his statutory right to appeal as part of
a valid plea agreement, provided (1) [the] waiver is knowing and voluntary, and
(2) the waiver applies to the circumstances at hand, based on the plain language
of the agreement.” Id. (quotation marks and citation omitted). Anthony and
Russell Davis do not claim the two exceptions to their appeal waivers apply, and
the record shows the plea agreements, including their appeal waivers, were
voluntary and knowing.
      In Melancon, our court held the uncertainty of a sentence does not render
waiver of the right to appeal a sentence uninformed. 972 F.2d at 567-68.
Moreover, Anthony and Russell Davis’ attempt to place themselves outside of
Melancon and its progeny into an area of unanswered law concerning whether
appellant knowingly waives the right to appeal upon receiving a sentence
contrary to the district court’s assurances is disingenuous. Nothing in the record
demonstrates the court assured either of them a certain sentence.
      Anthony and Russell Davis have not shown their contentions deserve
renewed analysis. One panel of our court may not overturn another panel’s
decision unless there has been an intervening change in law ?such as by a
statutory amendment, or the Supreme Court, or our en banc court”. United
States v. Snarr, 704 F.3d 368, 401 n.21 (5th Cir. 2013) (quotation marks and
citation omitted). Booker does not represent an intervening change in the law
for the reasons Anthony and Russell Davis espouse. See, e.g., United States v.

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                                 No. 12-30350
                               c/w No. 12-30352

Pizzolato, 655 F.3d 403, 405-06 (5th Cir. 2011), cert. denied, 132 S. Ct. 1126
(2012); United States v. Dees, 125 F.3d 261, 269 (5th Cir. 1997) (concluding
appellant’s being “informed of the maximum term of imprisonment to which she
could be sentenced, and her actual sentence [falling] within that range” rendered
plea informed and voluntary such that waiver of appeal in agreement was
enforceable).
      The record demonstrates Anthony and Russell Davis understood: the
court could depart upwardly; and they were waiving their right to appeal any
sentence not exceeding the statutory maximum. Their sentences did not exceed
that maximum. Thus, they have validly waived their rights to appeal. E.g.,
Pizzolato, 655 F.3d at 412; Melancon, 972 F.2d at 568. Accordingly, their
contentions regarding the claimed procedural and substantive unreasonableness
of their sentences will not be considered.
      DISMISSED.




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