     Case: 14-41354   Document: 00513429528     Page: 1   Date Filed: 03/18/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 14-41354
                              Summary Calendar
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                 March 18, 2016
UNITED STATES OF AMERICA,
                                                                  Lyle W. Cayce
                                                                       Clerk
                                           Plaintiff-Appellee

v.

SCOTT CAMERON SHERMAN,

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:
      Scott Cameron Sherman was convicted of conspiracy to commit wire
fraud and was sentenced below the guidelines range to 20 months of
imprisonment, to be followed by one year of supervised release.                Though
Sherman was initially indicted on one count of conspiracy to commit mail and
wire fraud affecting a financial institution and two counts of wire fraud
affecting a financial institution, Sherman waived his right to prosecution by
indictment and pleaded guilty to a bill of information. His guilty plea was
made pursuant to a plea agreement. Sherman now appeals and moves for
release on bail pending appeal or, alternatively, an order requiring the district
court to set the amount for an unsecured appearance bond.
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                                  No. 14-41354

        Sherman argues that the district court committed an error under
Federal Rule of Criminal Procedure 11 because the court failed to advise him
that the initial indictment was void. He also contends that his guilty plea was
unknowing and involuntary as a result of a material misrepresentation or
mutual mistake underlying the validity of the plea agreement.            Sherman
further argues that the indictment was invalid and deprived the district court
of jurisdiction because it was returned after the grand jury’s term expired.
        Because Sherman did not object to the alleged Rule 11 error in the
district court, we review for plain error only. See United States v. Vonn, 535
U.S. 55, 58-59 (2002). To establish plain error, Sherman must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
        Our review of the record shows that the district court complied with Rule
11 and that Sherman’s guilty plea was knowing and voluntary. He does not
show that the court committed clear or obvious error. See Puckett, 556 U.S. at
135.
        Sherman’s argument challenging the validity of the plea agreement fails.
He asks us to apply the Tenth Circuit’s three-part test in determining whether
a “mutual mistake” invalidated his plea agreement.          See United States v.
Frownfelter, 626 F.3d 549, 555 (10th Cir. 2010). Even if, assuming arguendo,
we applied the test here, Sherman cannot prevail.             Sherman received
numerous substantial benefits from pleading guilty to the information
pursuant to the plea agreement. Additionally, the alleged technical invalidity
of the indictment would not have prevented the Government from presenting
the case to a new grand jury to obtain a new indictment. Thus, he does not



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                                No. 14-41354

show that the “mutual mistake” had a material effect on the agreed exchange
of performances. His alternative claim that the Government misrepresented
the validity of the indictment is conclusory, speculative, and not supported by
any evidence in the record. In sum, he has failed to show that his guilty plea
was unknowing or involuntary.
      Because Sherman entered a knowing and voluntary guilty plea to a bill
of information after knowingly waiving his right to indictment, Sherman’s
challenge to the validity of the indictment is waived. See United States v.
Cotton, 535 U.S. 625, 630-31 (2002); United States v. Daughenbaugh, 549 F.3d
1010, 1012 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED. Sherman’s motion for
bail pending appeal or, alternatively, an order requiring the district court to
set the amount for an unsecured appearance bond is DENIED.




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