     Case: 09-50942     Document: 00511136320          Page: 1    Date Filed: 06/09/2010




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

                                                  FILED
                                                                            June 9, 2010
                                     No. 09-50942
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

GRADY MICHAEL RILEY,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-820-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Grady Michael Riley appeals the 78-month sentence he received following
his guilty-plea conviction for possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B). He seeks to challenge the reasonableness of the sentence
imposed, specifically arguing that the district court erred in refusing to vary
below the guidelines range in his case. The Government argues that the appeal
is barred by the appeal waiver in Riley’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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50942      Document: 00511136320 Page: 2       Date Filed: 06/09/2010
                                   No. 09-50942

      For a defendant’s waiver of his right to appeal to be knowing and
voluntary, the defendant must know that he had a right to appeal his sentence
and that he was relinquishing that right. United States v. Portillo, 18 F.3d 290,
292 (5th Cir. 1994). A waiver is both knowing and voluntary if the defendant
“indicated that he had read and understood the plea agreement, which includes
an explicit, unambiguous waiver of appeal.” United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005). As part of the plea colloquy, the district court
must address the defendant in open court and determine whether the defendant
understands the waiver provision. See F ED. R. C RIM. P. 11(b)(1)(N). We review
the validity of an appeal waiver de novo. United States v. Burns, 433 F.3d 442,
445 (5th Cir. 2005).
      Riley waived his right to appeal his sentence on any ground and further
waived his right to collaterally challenge his sentence except for claims of
prosecutorial misconduct or ineffective assistance.        Riley signed the plea
agreement, indicating that he had read and reviewed it with counsel and that
he understood the agreement and voluntarily agreed to its terms.                    At
rearraignment, the magistrate judge specifically admonished him about the
waiver provision. Riley stated that he understood, and he did not express any
confusion or misgivings concerning the appeal waiver.            The record thus
establishes that Riley’s waiver was knowing, voluntary, and enforceable. See
Portillo, 18 F.3d at 292-93; F ED. R. C RIM. P. 11(b)(1)(N).
      For the first time in his reply brief, Riley contends that the waiver should
not bar his appeal because the failure to consider his claim will result in a
miscarriage of justice. We decline to consider the argument. See United States
v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006) (“[T]his Court will not
ordinarily consider arguments raised for the first time in a reply brief.”). Even
if we were to consider it, the argument lacks merit. This court routinely has
ruled that issues waived in a valid, enforceable appeal waiver need not be
considered. See, e.g., United States v. Bond, 414 F.3d 542, 546 (5th Cir. 2005);

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                                 No. 09-50942

McKinney, 406 F.3d at 747. Moreover, we need not determine whether we
should adopt a miscarriage-of-justice exception to the enforcement of appeal
waivers because Riley’s substantive claim is a relatively standard challenge to
the district court’s refusal to vary below the guidelines range that would not fall
within a miscarriage-of-justice exception. See United States v. Andis, 333 F.3d
886, 891-92 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557, 562-63 (3d
Cir. 2001). Riley “is bound to his obligations under the plea agreement,” and the
appeal waiver bars his appeal. See McKinney, 406 F.3d at 747.
      AFFIRMED.




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