     Case: 14-41354      Document: 00513286224         Page: 1    Date Filed: 11/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


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

                                                                                FILED
                                                                        November 25, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,
                                                 Plaintiff–Appellee,
versus
SCOTT CAMERON SHERMAN,
                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-94-5




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

       A grand jury indicted Scott Sherman 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 then waived his right to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41354     Document: 00513286224      Page: 2   Date Filed: 11/25/2015


                                  No. 14-41354

indictment and pleaded guilty to a bill of information charging him with
conspiracy to commit wire fraud. As part of the plea agreement, Sherman
waived his right to appeal the conviction and sentence, reserving only the right
to appeal a sentence imposed in excess of the statutory maximum and a claim
of ineffective assistance of counsel affecting the validity of the guilty plea or
appeal waiver. Sherman was sentenced below the guideline range to twenty
months of imprisonment and one year of supervised release. The indictment
was dismissed on motion of the government. Sherman appeals.

      During the pendency of this appeal, the parties discovered that the
indictment issued on April 11, 2013, was returned more than twenty-four
months after the grand jury had been impaneled. Sherman claims that the
indictment was invalid and deprived the district court of jurisdiction because
it was returned after the grand jury’s term had expired. Sherman also con-
tends that the district court committed an error under Federal Rule of Crim-
inal Procedure 11(c)(1) because it failed to advise him that the indictment was
void. Finally, Sherman maintains that the appeal waiver is unenforceable and
that his guilty plea was involuntary as a result of a material misrepresentation
or mutual mistake.

      The government moves for summary dismissal, or alternatively, sum-
mary affirmance on the ground that the appeal is barred by the appeal waiver
and that the issues are foreclosed. The parties’ positions raise questions as to
the knowing and voluntary nature of the guilty plea and appeal waiver.
Challenges to the voluntariness of a guilty plea are not barred by an appeal
waiver and are not foreclosed.

      Summary disposition is “necessary and proper” in “cases where time is
truly of the essence” or where “the position of one of the parties is clearly right
as a matter of law so that there can be no substantial question as to the


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                                  No. 14-41354

outcome of the case, or where, as occurs more frequently, the appeal is frivo-
lous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Given the parties’ arguments, summary dismissal or summary affirmance is
inappropriate here.

      Accordingly, the motion for summary dismissal and the alternative
motion for summary affirmance are DENIED. The government is directed to
file a brief within thirty days of this opinion.




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