     Case: 12-30571   Document: 00512403617      Page: 1   Date Filed: 10/10/2013




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

                                                                         FILED
                                 No. 12-30571                      October 10, 2013
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                            Plaintiff-Appellee
v.

TOMMY WALTERS,

                                            Defendant-Appellant




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
REAVLEY, Circuit Judge:
      Tommy Walters appeals following his conviction by a jury of conspiracy
and substantive drug offenses, as well as unlawful use of communications
facilities. He challenges the participation of alternate jurors during the jury
deliberations. Because Walters waived his right to appeal in a sentencing
agreement, however, we DISMISS the appeal.
                                       I.
      Walters was charged in a multi-count, multi-defendant indictment with
one count of conspiracy to distribute and possess with intent to distribute five
kilograms or more of cocaine and 50 grams or more of cocaine base, and three
counts of unlawful use of communication facilities. The Government filed a
notice of sentencing enhancement pursuant to 21 U.S.C. § 851(a) because
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                                 No. 12-30571
Walters had two prior felony drug convictions. The enhancement exposed
Walters to a mandatory sentence of life imprisonment in the instant case.
Following the jury’s verdict of guilty, Walters filed motions for a new trial and
to arrest judgment, arguing that the district court had improperly allowed two
alternate jurors to participate in the jury deliberations.
      Walters subsequently entered into a sentencing agreement with the
Government in which he agreed to withdraw his pending motions and waive
his right to appeal the conviction and sentence in exchange for the
Government’s dismissal of the second statutory sentencing enhancement. As
a result of this agreement, Walters faced a mandatory minimum sentence of
twenty years in prison. Walters and his counsel both signed the agreement,
and at sentencing Walters re-affirmed his intent to enter into the agreement
after it was read aloud by the Government’s attorney. The district court
sentenced Walters to a total term of 240 months in prison.
                                            II.
      On appeal, Walters seeks to argue that the district court plainly erred
by allowing two alternate jurors to take part in the jury deliberations. The
Government argues that the appeal is barred by the appeal waiver in the
sentencing agreement. We have not previously addressed the enforceability of
appeal waivers contained in sentencing agreements, although we have
routinely enforced voluntary and informed appeal waivers contained in plea
agreements. See, e.g., United States v. Melancon, 972 F.2d 566, 567 (5th Cir.
1992). Our sister circuits have uniformly held that waivers in sentencing
agreements are enforceable just as waivers in plea agreements are enforceable.
See, e.g., United States v. Cheney, 571 F.3d 764, 766 (8th Cir. 2009); United
States v. Trejo-Nolasquez, 346 F. App’x 374, 375-77 (5th Cir. 2009); United
States v. Cano, 190 F. App’x 34, 36-37 (2d Cir. 2006); United States v. Stevens,
66 F.3d 431, 437 (2d Cir. 1995). We agree with our sister circuits.
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                                No. 12-30571
      The validity of an appeal waiver is an issue of law that we review de
novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005). We will
enforce a defendant’s waiver of appellate rights if the waiver was knowing and
voluntary, and if the waiver applies to the circumstances at hand. United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      In the instant case, Walters challenges only the voluntariness of his
appeal waiver. He argues that the waiver was not knowing and voluntary
because the district court did not address the waiver in open court at
sentencing and failed to ensure that he fully understood the consequences of
the waiver. We are not persuaded.
      The sentencing agreement expressly indicated that “[t]he defendant
acknowledges that this Agreement has been entered into knowingly,
voluntarily, and with the advice of counsel, and that he fully understands it.”
Both Walters and his counsel signed the agreement.         At the sentencing
hearing, the Government’s attorney read the agreement into the record.
Walters then verbally re-affirmed that he had signed the document and that it
was his intent to enter into the agreement. He raised no question about the
waiver. Walters argues that the district court did not discuss or explain the
waiver provision at the sentencing hearing. But because Walters’s waiver was
contained in a post-verdict agreement rather than in a pre-trial plea
agreement, as is typical, the requirement that the district court discuss an
appeal waiver before accepting a guilty plea is inapplicable. See Fed. R. Crim.
P. 11(b)(1)(N); Cheney, 571 F.3d at 767 & n.4; Trejo-Nolasquez, 346 F. App’x at
376. Walters acknowledged both in writing and at the sentencing hearing that
he intended to enter into and understood the agreement, which contained a
clear and explicit waiver, and we conclude that the waiver was therefore both
knowing and voluntary. See United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005) (“Because McKinney indicated that he had read and understood the
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                                No. 12-30571
plea agreement, which includes an explicit, unambiguous waiver of appeal, the
waiver was both knowing and voluntary.”).
      As a result of the sentencing agreement, Walters voluntarily chose the
guarantee that he would not face a mandatory life term in prison over the
uncertainty of pursuing an appeal. He may not now avoid the consequences of
his agreement after having received the benefit of his bargain.
      APPEAL DISMISSED.




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