     Case: 15-60398      Document: 00513368035         Page: 1    Date Filed: 02/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60398
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 3, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

TIMOTHY WINFRED MILLER,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:15-CR-2-1




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Timothy Miller appeals the sentence imposed on his conviction of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60398     Document: 00513368035      Page: 2   Date Filed: 02/03/2016


                                  No. 15-60398

possession of materials involving sexual exploitation of minors. Specifically,
Miller challenges the restitution and the special condition of supervised release
(“SR”) prohibiting access to the internet and to computers without the permis-
sion of a probation officer.

      In the plea agreement, Miller waived the right to appeal his “conviction
and sentence imposed in this case, or the manner in which that sentence was
imposed . . . on any ground whatsoever.” Miller claims, however, that the
waiver is not enforceable because he could not knowingly and intelligently
waive the right to appeal a sentence that has not yet been imposed. He asserts
that even if the waiver is enforceable, it does not apply to his challenges to the
restitution and SR. The government seeks to enforce the appeal waiver and
moves for dismissal of the appeal or, alternatively, summary affirmance.

      To determine whether an appeal of a sentence is barred by an appeal
waiver, this court analyzes whether the waiver was knowing and voluntary
and whether the waiver applies to the circumstances at hand, based on the
plain language of the agreement. See United States v. Bond, 414 F.3d 542, 544
(5th Cir. 2005). For a waiver to be knowing and voluntary, the “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) (inter-
nal quotation marks and citation omitted). The record shows that Miller’s
waiver was knowing and voluntary. See United States v. Melancon, 972 F.2d
566, 567-68 (5th Cir. 1992).

      Miller’s challenge to the condition of SR restricting access to the internet
and to computers is barred by the appeal waiver. See United States v. Higgins,
739 F.3d 733, 738–39 (5th Cir. 2014). Because the record shows that a poten-
tial restitution order was discussed at rearraignment and at sentencing, and
because the plea agreement defined “Sentence” to include restitution, the


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                                No. 15-60398

waiver bars Miller’s challenge to the amount of the restitution order. See
United States v. Keele, 755 F.3d 752, 755–56 (5th Cir. 2014).

      Accordingly, the motion to dismiss is GRANTED, and the appeal is
DISMISSED. The government’s alternative motion for summary affirmance
is DENIED as unnecessary.




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