     Case: 12-20683       Document: 00512316429           Page: 1    Date Filed: 07/22/2013




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

                                                                              FILED
                                                                             July 22, 2013
                                     No. 12-20683
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRYAN ANDREW THERIOT,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-470-2


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Bryan Andrew Theriot appeals the sentence imposed following his guilty
plea conviction for conspiring to maintain a place for the purposes of
manufacturing controlled substances.               He was sentenced to eighty-seven
months of imprisonment and three years of supervised release. He contends
that the district court unconstitutionally relied on facts not proved beyond a
reasonable doubt to increase his sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-20683    Document: 00512316429     Page: 2    Date Filed: 07/22/2013

                                 No. 12-20683

      The Government moves to dismiss the appeal as barred by Theriot’s
appeal waiver. Theriot acknowledges that he “signed a plea agreement that
included a waiver of his right to appeal his sentence.” He also concedes that
“the enforceability of waiving a his right to appeal has been foreclosed by this
court, but includes it for a possible writ of certiorari to the United States
Supreme where the issue has yet to be determined.” However, he nonetheless
argues that the waiver is invalid because “[u]nless the defendant is clairvoyant,
it is literally impossible to waive the right to appeal the sentence knowingly
and intelligently before the sentence has actually been imposed.”
      Theriot’s waiver challenge is unavailing. See United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992) (“The Supreme Court has repeatedly
recognized that a defendant may waive constitutional rights as part of a plea
bargaining agreement.”). Theriot knowingly and voluntarily waived his right
to appeal his sentence. See United States v. Portillo, 18 F.3d 290, 292 (5th Cir.
1994). There is no relevant exception to the appeal waiver. The Government
complied with its obligations in the plea agreement and has invoked the appeal
waiver to bar Theriot’s appeal. Therefore, Theriot is bound by the appeal
waiver, which bars the instant appeal. See United States v. Story, 439 F.3d 226,
231 (5th Cir. 2006); United States v. Keresztury, 293 F.3d 750, 755-57 (5th Cir.
2002).
      The judgment of the district court is AFFIRMED. The Government’s
motion to dismiss the appeal is DENIED, and the Government’s alternative
motion for an extension of time to file a brief is DENIED as moot.




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