     Case: 15-60784      Document: 00513613346         Page: 1    Date Filed: 07/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60784
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 28, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SANJAY SINHA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:14-CR-9-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Sanjay Sinha appeals his guilty plea conviction and sentence for
possession with intent to distribute and dispense a Schedule IV controlled
substance outside of the scope of professional practice. Sinha argues that
(1) the district court erred in denying his motion to dismiss the indictment on
the ground that the Government failed to allege that he issued prescriptions
“for no legitimate medical purpose,” a critical element of the offense; (2) the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60784

district court erred in holding him responsible for all of the prescriptions
written in Mississippi as part of his relevant conduct; and (3) the appeal waiver
was not knowing and voluntary and does not bar this appeal.
      In Sinha’s plea agreement, he agreed to waive “the right to appeal the
conviction and sentence imposed in this case, or the manner in which that
sentence was imposed, on the grounds set forth in Title 18, United States Code,
Section 3742, or on any ground whatsoever.” Sinha reserved only the right to
raise a claim of ineffective assistance of counsel. According to Sinha, the
appeal waiver was not knowing and voluntary because he could not have
anticipated that the district court would err in calculating his sentence based
on relevant conduct and because the Government led him to believe that
relevant conduct would only include the counts to which he pleaded guilty. 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 provision in a plea agreement, 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
and that he was giving up that right. United States v. McKinney, 406 F.3d 744,
746 n.2 (5th Cir. 2005). The record shows that Sinha’s appeal waiver was
knowing and voluntary. Sinha’s challenge to the validity of his appeal waiver
is unavailing. This Court has consistently held that sentencing determinations
made after an appeal waiver is signed do not render that agreement invalid.
See United States v. Alvarado-Casas, 715 F.3d 945 (5th Cir. 2013) (because
appellant indicated that he read and understood his appeal waiver, the waiver



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                                 No. 15-60784

precluded appeal of alleged double-counting error under the Sentencing
Guidelines); see also United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir.
1992) (“the uncertainty of Appellant's sentence does not render his waiver
uninformed”).
      We need not decide whether the appeal waiver bars Sinha’s claim that
the district court erred in denying his motion to dismiss the indictment because
Sinha concedes that this claim is foreclosed by United States v. Fuchs, 467 F.3d
889, 900-01 (5th Cir. 2006). See id. (holding that “a medical professional ‘can
be prosecuted under § 841 when [his] activities fall outside the usual course of
professional practice’” (quoting United States v. Moore, 423 U.S. 122, 124
(1975))).
      Accordingly, the Government’s motion to dismiss is GRANTED in part
and DENIED in part. The Government’s alternative motion for summary
affirmance is GRANTED in part and DENIED in part.               The appeal is
DISMISSED in part and the district court’s denial of Sinha’s motion to dismiss
the indictment is AFFIRMED.




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