     Case: 10-40989     Document: 00511686858         Page: 1     Date Filed: 12/06/2011




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

                                                                            FILED
                                                                         December 6, 2011
                                     No. 10-40989
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JIM BOB SHIPP,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:10-CR-6-1


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Jim Bob Shipp was convicted by a jury of six counts of health care fraud
and one count of making false statements relating to health care matters. He
also pleaded guilty to one count of being a felon in possession of a firearm. The
probation officer grouped the offenses to assess the applicable guidelines range
for all counts, and Shipp ultimately received concurrent sentences of 63 months
for the fraud and firearm convictions and 60 months for the false statements
conviction.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40989    Document: 00511686858       Page: 2   Date Filed: 12/06/2011

                                   No. 10-40989

      On appeal, Shipp acknowledges that he has waived his right to appeal to
his conviction or sentence on the firearm charge. He instead asserts that he is
challenging the sentences received for the health care counts, which were based
on the same guidelines calculations. Shipp contends that he should have
received a reduction for acceptance of responsibility, in light of his guilty plea to
the firearm offense. In addition, he asserts that the district court erred in
imposing an enhancement based on the number of firearms he possessed. The
Government contends that Shipp’s arguments are barred by the waiver-of-
appeal provision.
      A defendant may waive his right to appeal as part of a valid plea
agreement if the waiver is knowing and voluntary. United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). To determine whether Shipp’s appellate
challenge is barred by the waiver-of-appeal provision, “we conduct a two-step
inquiry: (1) whether the waiver was knowing and voluntary and (2) whether the
waiver applies to the circumstances at hand, based on the plain language of the
agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Although
Shipp’s waiver provision does not apply to his purported appeal of his health
care sentences, a review of his claims shows that he is challenging the guidelines
calculations conducted for the firearm count, and such challenges are barred by
the waiver provision. See id. However, even if we conclude that Shipp’s
purported challenges are only to the sentences imposed for the health care fraud
and false statements counts, Shipp is not entitled to relief.
      Shipp contends that he should have received a three-level reduction for
acceptance of responsibility, in light of his guilty plea to the firearm count and
the fact that other courts have granted such a reduction under similar
circumstances. Because the Government did not move for the additional one-
level reduction under U.S.S.G. § 3E1.1(b), Shipp was not entitled to receive that
benefit. As for his entitlement to the two-level reduction under § 3E1.1(a), Shipp
has not established that the district court’s decision was “without foundation,”

                                         2
   Case: 10-40989   Document: 00511686858      Page: 3   Date Filed: 12/06/2011

                                  No. 10-40989

in light of the fact that Shipp elected to go to trial on the health care counts
based on his assertion that he was in fact innocent of those charges and in light
of his delay in electing to plead guilty to the firearm charge. United States v.
Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks and
citation omitted); § 3E1.1, comment. (n.2).
      In his second ground for relief, Shipp contends that he should not have
received a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) based on his
possession of three firearms. Because Shipp did not challenge the enhancement
in the district court, we review for plain error. United States v. Perez, 585 F.3d
880, 886 (5th Cir. 2009). Given Shipp’s admissions at rearraignment that he in
fact possessed the disputed weapon, he is unable to show a clear or obvious
error. See United States v. Puckett, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009).
His assertion that the Government “abandoned” one of the firearms is a
misinterpretation of the statements made at sentencing; the Government
instead relieved Shipp of the obligation of forfeiting the revolver in question.
The judgment of the district court is thus AFFIRMED.




                                        3
