     Case: 13-10930      Document: 00512861907         Page: 1    Date Filed: 12/08/2014




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

                                    No. 13-10930
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        December 8, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

GANIU A. AKANDE, also known as Mohammed Yussuf,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CR-59


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ganiu A. Akande appeals the above-guidelines sentence that the district
court imposed following his guilty plea to possession of stolen mail. Following
the denial of the Federal Public Defender’s motion to withdraw under Anders
v. California, 386 U.S. 738 (1967), the parties have briefed a potentially
nonfrivolous issue, which was identified in the order dated August 27, 2014,
and concerns the appeal-waiver provision in Akande’s plea agreement.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10930

      Appeal waivers are reviewed de novo and construed narrowly against
the Government. United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006).
To determine whether an appeal is barred by a waiver provision in a plea
agreement, we conduct a two-step inquiry, asking whether the waiver was
knowing and voluntary and whether, under the plain language of the plea
agreement, the waiver applies to the circumstances at issue. United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005).      Akande does not challenge the
knowing and voluntary nature of the waiver. Therefore, we address only the
second inquiry.
      In the waiver, which the Government seeks to enforce, Akande reserved
the right to appeal “an arithmetic error at sentencing.” The record does not
suggest that the parties intended the term “arithmetic error” to mean anything
other than “an error involving a mathematical calculation.” United States v.
Logan, 498 F. App’x 445, 446 (5th Cir. 2012); see also Bond, 414 F.3d at 546
(noting that, without indication of different intent, terms in appellate waiver
are given their “ordinary and natural meaning” (internal quotation marks and
citation omitted)).
      Akande argues that the district court made an arithmetic error in
applying U.S.S.G. § 5G1.3(b) when it credited him only 26 months of time
served, instead of 26 months and 5 days. Akande asserts that the district
court’s miscalculation of the time since his arrest “is arithmetic error within
any reasonable understanding of the term.” We agree.
      The district court’s determination of Akande’s time served in state
custody was a mathematical calculation. The presentence report (PSR) noted
that Akande was arrested on June 14, 2011, on state charges related to the
federal offense. Akande’s counsel also asserted that Akande had been in
continuous custody since his June 14, 2011 arrest and that the state will give



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                                  No. 13-10930

him credit for time served back to that date. Counsel then asked for an
adjustment on Akande’s federal sentence for the “roughly 26 months that he
has served.” The district court agreed that the sentence should be adjusted for
the time served in state custody. The district court, however, “determine[d]
that Mr. Akande has been in state custody for 26 months.” That calculation
was an error. Subtracting the arrest date, June 14, 2011, from the federal
sentencing date, August 19, 2013, Akande had actually spent 26 months and 5
days in custody.
      Having concluded that the issue Akande raises on appeal is not barred
by the appeal-waiver provision, we nevertheless affirm the sentence the
district court imposed. Akande did not object to the sentence imposed.
Moreover, a “defendant may not complain on appeal of errors that he himself
invited or provoked the [district] court . . . to commit.” United States v. Salazar,
751 F.3d 326, 332 (5th Cir. 2014) (alterations in original) (citation omitted).
“Invited error imposes an even higher standard than does plain-error review:
We will not reverse on the basis of invited error, absent manifest injustice.” Id.
Here, Akande’s counsel never explicitly alerted the district court that the
proper calculation of Akande’s time served was exactly 26 months and 5 days.
Instead, counsel affirmatively represented to the district court at least four
times that Akande had been in custody for “26 months.” Counsel also advised
the district court that an “adjustment of 26 months would appropriately be
taken off whatever sentence the Court determines is appropriate.” Finally,
Akande’s counsel did not object when the district court clarified, before
imposing the sentence, that “the amount [Akande] would be credited is 26
months.” These affirmative assertions that the district court should credit
Akande 26 months of time served “arguably constitutes invited error.” United




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                                  No. 13-10930

States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). Nevertheless, out
of an abundance of caution, we will also review for plain error.
      Under plain error review, “relief is not warranted unless there has been
(1) error, (2) that is plain, and (3) affects substantial rights.” Jones v. United
States, 527 U.S. 373, 389 (1999). Even assuming that Akande could satisfy
these three prongs, this court must still conclude that the error “seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
Henderson v. United States, 133 S. Ct. 1121, 1130 (2013). This court has
cautioned that “[n]ot every error that increases a sentence need be corrected
by a call upon plain error doctrine.” United States v. Ellis, 564 F.3d 370, 378
(5th Cir. 2009). Generally, “we look to the degree of the error and the particular
facts of the case to determine whether to exercise our discretion.” United States
v. Avalos-Martinez, 700 F.3d 148, 154 (5th Cir. 2012) (internal quotation marks
and citation omitted)). Because Akande’s sentence is only five days longer than
what he contends that it should be and because the district court thoroughly
articulated its reasons for upwardly departing from the advisory Guidelines
range, this disparity does not rise to an error that “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Henderson,
133 S. Ct. at 1130.
      For the reasons stated above, we AFFIRM Akande’s sentence.




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