     Case: 17-20629      Document: 00515136401         Page: 1    Date Filed: 09/27/2019




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

                                      No. 17-20629                           FILED
                                                                     September 27, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

                                                 Plaintiff–Appellee,

v.

JOHN JACOB LAVERGNE,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-653-1


Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: ∗
       John Jacob Lavergne pleaded guilty to:
       • conspiracy to possess with intent to distribute 50 grams or more
         of methamphetamine and 500 grams or more of a mixture and
         substance      containing     a     detectable     amount     of
         methamphetamine (Count 1); and

       • using, carrying, or possessing a firearm during and in relation
         to a drug trafficking crime (Count 16).



       ∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20629

As part of his plea agreement, Lavergne waived his right to appeal his
convictions and sentences. Lavergne raises two issues: (1) the Government
breached the plea agreement by failing to move to dismiss Count 16 of the
indictment; and (2) the district court erred in applying a two-level threat-of-
violence enhancement to his sentence.
      After examining the applicability and scope of the appeal waiver, we
AFFIRM as to Lavergne’s breach claim, and DISMISS his enhancement
challenge because it is barred by his appeal waiver.
                                  *      *     *
      An appeal waiver does not prevent Lavergne from alleging that the
Government violated the terms of the plea agreement. See United States v.
Keresztury, 293 F.3d 750, 755–57 (5th Cir. 2002); United States v, Branam, 231
F.3d 931, 931 n.1 (5th 2000). Generally, whether the Government breached a
plea agreement is a question of law that we review de novo. See United States
v. Saling, 205 F.3d 764, 766 (5th 2000). We examine “whether the
government’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.” United States v. Pizzolato, 655 F.3d 403, 409
(5th 2001). But since Lavergne failed to object to the Government’s alleged
breach in the district court, our review is limited to plain error. See United
States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014). To establish plain error,
Lavergne must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes such a showing, we have discretion to correct the error but only if
it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks, brackets, and citation omitted).
      As the Supreme Court observed in Puckett, “the second prong of plain-
error review . . . will often have some ‘bite’ in plea-agreement cases.” Id. at 143.



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Under the second prong, “the legal error must be clear or obvious, rather than
subject to reasonable dispute.” Id. at 135. “Not all breaches will be clear or
obvious. Plea agreements are not always models of draftsmanship, so the scope
of the Government’s commitments will on occasion be open to doubt.” Id. at
143.
        The plea agreement’s first paragraph indicates that Lavergne agreed to
plead guilty to both Counts 1 and 16 of the indictment. Paragraph 15 states
that Lavergne “is pleading guilty because he is guilty of the charges contained
in Count One and Count Sixteen of the Indictment.” Yet, the agreement,
without mentioning a guilty plea as to Count 16, provides in Paragraph 10(a)
that, if Lavergne:
        pleads guilty to Count One of the indictment and persists in that
        plea through sentencing, and if the Court accepts this plea
        agreement, the United States will move to dismiss any remaining
        counts of the indictment at the time of sentencing.

This plea agreement—particularly the tension between Paragraphs 1 and 15
with Paragraph 10(a)—is open to reasonable dispute. It is not clear or obvious
how to reconcile those incongruous passages. And it is thus not clear or obvious
that the Government breached the plea agreement by failing to move to
dismiss Count 16. See id. at 135, 143. Accordingly, Lavergne has not shown he
is entitled to relief under the plain-error standard. See id. at 135.
        We recently reached the same conclusion in a virtually identical case,
United States v. Perez, 478 F. App’x 253, 254 (5th Cir. 2012). Although not
binding on us, Perez is well reasoned and persuasive. In Perez, plea agreement
Paragraphs 1 and 17 indicated that Perez agreed to plead guilty to Counts 1
and 7 of the superseding indictment. Id. at 253–54. However, Paragraph 13(a)
provided that if Perez pleaded guilty to Count 1, the Government would move
to dismiss any remaining counts at sentencing. Id. at 254. We concluded there


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was a lack of clarity as to the Government’s obligation under the plea
agreement: “it [was] not clear or obvious that the Government’s failure to move
for the dismissal of Count Seven at sentencing constitute[d] a breach of the
agreement; rather, the matter [was] subject to reasonable dispute.” Id.
(internal quotation marks and citation omitted). Perez is on all fours, and,
though unbinding, we apply the same logic here. Because this imprecise plea
agreement is subject to reasonable dispute, Lavergne has not satisfied the
plain-error standard.
       In sum, we AFFIRM the district court’s judgment convicting and
sentencing Lavergne pursuant to a valid plea agreement. As for Lavergne’s
enhancement challenge, it is barred by his knowing and voluntary appeal
waiver and is thus DISMISSED. 1


       1
           We acknowledge that the precise decretal language in our cases enforcing appeal
waivers can seem inconsistent. Some cases use “dismiss” while others use “affirm.” In this
case, we use both terms because Lavergne raises two distinct issues on appeal. We AFFIRM
as to the first issue—whether the Government violated the terms of the plea agreement by
not seeking dismissal of Count 16. And we DISMISS as to the second issue—whether the
district court erred in applying an enhancement. Why not dismiss Lavergne’s appeal in its
entirety? Because his claim that the Government breached the plea agreement is properly
before us and we have reviewed its merits. An appeal waiver cannot bar a breach
challenge. See United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010) (rejecting
Government’s request to dismiss the appeal based upon the appeal waiver since “an alleged
breach of a plea agreement may be raised despite a waiver provision”). Instead, we affirm
that the district court convicted and sentenced Lavergne on the basis of a valid, unviolated
plea agreement. In other sentencing appeals, where the appellant does not argue that the
plea agreement was breached, but instead argues, incorrectly, that the appeal waiver is
inapplicable, dismissal is appropriate. Consider United States v. Bond, 414 F.3d 542, 545 (5th
Cir. 2015). In Bond, the appellant raised a waiver-interpretation argument—that the terms
of the waiver did not bar his appeal. We disagreed and thus dismissed. If an appeal waiver
covers, and thus bars, a challenge, there is no issue for our review, thus warranting
dismissal. See Dismissal Order, Black’s Law Dictionary (11th ed. 2019) (A “dismissal order”
is an order that “end[s] a lawsuit without a decision on the merits.”); United States v. Bell,
966 F.2d 914, 917 (5th Cir. 1992) (“[I]f the record contains no manifestation of the appellate
rights . . . an appellate court may not reach the merits of the defendant’s appeal.”). Lavergne’s
appeal includes both types of challenges, so it gets a hybrid approach. We reach the merits of
one issue (breach of the agreement, not barred by the appeal waiver—thus AFFIRM) but do
not reach the merits of the other issue (enhancement of the sentence, barred by the waiver—
thus DISMISS).


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                                  No. 17-20629

ANDREW S. OLDHAM, Circuit Judge, concurring in part and dissenting in
part:

      I agree with all but a few words in the court’s opinion. Unfortunately,
those words appear in the decretal language. See Jon O. Newman, Decretal
Language: Last Words of an Appellate Opinion, 70 BROOK. L. REV. 727, 727
(2005) (“ ‘Decretal language’ is the portion of a court’s judgment or order that
officially states (‘decrees’) what the court is ordering.”). I therefore have no
choice but to dissent in part. I’d dismiss the appeal in full.
      The judicial power vested by Article III is the power “to render
dispositive judgments.” Plaut v. Spendthrift Farms, Inc., 514 U.S. 211, 219
(1995) (emphasis added) (quoting Frank H. Easterbrook, Presidential Review,
40 CASE W. RES. L. REV. 905, 926 (1990)). Sure, we write opinions to explain
our reasons. And we hope those reasons are persuasive to the parties, our
colleagues on the bench, and the taxpayers who employ us. But at the end of
the day, it is the judgment that really matters: “The court’s decision of a case
is its judgment thereon. Its opinion is a statement of the reasons on which the
judgment rests.” Rogers v. Hill, 289 U.S. 582, 587 (1933).
      After all, it is the judgment that affects the legal rights of the parties.
Article III gives a federal court the power to decide “Cases” and “Controversies”
brought by proper parties who’re entitled to invoke our jurisdiction. U.S.
CONST. art. III, § 2. A federal court decides a case or controversy by rendering
a final and enforceable judgment, subject to revision only by a superior federal
court. See, e.g., Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792); United States v.
Ferreira, 54 U.S. (13 How.) 40 (1851). And it is the judgment that conclusively
alters the rights of the parties in the case or controversy. See, e.g., Gordon v.
United States, 117 U.S. 697, 700–04 (1864) (stating that the judgments of
Article III courts are “final and conclusive upon the rights of the parties”);


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Jennings v. Stephens, 135 S. Ct. 793, 799 (2015) (“Courts reduce their opinions
and verdicts to judgments precisely to define the rights and liabilities of the
parties.”).
      Numerous old chestnuts derive from this premise. Appellate courts
“review[ ] judgments, not opinions.” Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). The appellee can “urge in support of a
decree any matter appearing in the record, although his argument may involve
an attack upon the reasoning of the lower court.” United States v. Am. Ry.
Express Co., 265 U.S. 425, 435 (1924). “While a decision below may be
sustained, without a cross-appeal, although it was rested upon a wrong ground,
an appellee cannot without a cross-appeal attack a judgment entered below.”
Helvering v. Pfeiffer, 302 U.S. 247, 250–51 (1937) (citation omitted). The
preclusion doctrines hinge on judgments, not opinions. E.g., Restatement
(Second) of Judgments § 27 (1982). I could go on, but the point should be clear:
Judgments really matter.
      In this case, the district court entered judgment against Lavergne. RE
tab 3. That judgment sentenced him to 420 months in prison, among other
things. Id. at 3. Lavergne invokes our appellate jurisdiction to review that
judgment. But our panel unanimously agrees that Lavergne has waived his
rights to seek our review. That means, in my view, the appeal must be
dismissed.
      My reasons are three. First, there is a latent issue of Article III
jurisdiction. Our Court has held that appeal waivers are non-jurisdictional. See
United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). After all, the
government is under no obligation to enforce an appeal waiver. Ibid. And, if
they don’t, we will review the case. Ibid. But I wonder if appeal waivers
implicate another element of jurisdiction—namely, mootness.


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      A claim becomes moot “and therefore no longer a Case or Controversy for
purposes of Article III . . . when the issues presented are no longer live.”
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quotation omitted). It does
not matter “how vehemently the parties continue to dispute the lawfulness of
the conduct that precipitated the lawsuit.” Ibid. Rather, a case is moot so long
as the dispute “is no longer embedded in any actual controversy about the
plaintiffs’ particular legal rights.” Ibid.; see also Summers v. Earth Island Inst.,
555 U.S. 488, 494 (2009) (holding a party loses standing to appeal once it settles
a claim).
      For example, the Supreme Court recently faced a trademark dispute
between two shoe companies, Already and Nike. Already sought to invalidate
Nike’s trademark. In response, Nike filed a “covenant not to sue” with the
district court and sought to dismiss the case as moot. The Supreme Court
agreed, holding that it was “absolutely clear” that the case was no longer live.
Already, LLC, 568 U.S. at 102. The Supreme Court reasoned that Already
sought to invalidate Nike’s trademark solely because Already wanted to
prevent Nike from filing future lawsuits. Id. at 95–96. But Nike promised never
to sue and was bound by that promise. Id. at 93–94. Therefore, the “covenant
not to sue” encompassed the only Article III injury for which Already sought
relief. Since the binding promise left nothing for the court to do, the Supreme
Court affirmed the lower courts’ dismissals of the case as moot. Id. at 102.
      Criminal cases implicate different concerns than IP disputes. See Garza,
139 S. Ct. at 744–45. But I’m not sure those differences affect our appellate
jurisdiction. Lavergne made a binding promise not to appeal. We found that
promise valid, and we found it covers all of Lavergne’s claimed “legal rights.”
Already, LLC, 568 U.S. at 91. Since the entirety of the relief Lavergne seeks is




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encapsulated within a binding waiver of those rights, it’s unclear whether
there’s a “live” controversy before us. Ibid.
        At a minimum, if we want to exercise judicial power to “affirm” the
district court’s judgment, we must first consider our jurisdiction to do so.
“Hypothetical jurisdiction produces nothing more than a hypothetical
judgment.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). And
Lavergne has offered no argument that there’s a live controversy if we enforce
the appeal waiver (as we have). That makes our jurisdiction no more than
hypothetical. And it supports my conviction that we should dismiss. 2
        Second, putting aside the jurisdictional question, dismissal accords with
a proper understanding of our appellate function. The fundamental question
presented here is the same one presented in every case that reaches us under
28 U.S.C. § 1291: Should we exercise the judicial power to affirm, reverse, or
vacate the district court’s judgment? The Government says we should choose
none of the above because Lavergne’s appeal waiver stands in the way. We
agree with the Government. So I’d think we should do the same thing we
routinely do when we find such an obstacle: dismiss the appeal.
        As this Court said in United States v. Bond, 414 F.3d 542 (5th Cir. 2005),
the defendant “waived his right to appeal his sentence under the present
circumstances. . . . The appeal is dismissed.” Id. at 546 (emphasis added). We
make similar statements all the time when defendants have agreed to an
appeal waiver as part of their plea agreement. See, e.g., United States v.
Casillas, 853 F.3d 215, 218 (5th Cir. 2017); United States v. Solis, 2019 WL
3770813, *1 (5th Cir. Aug. 9, 2019); United States v. Foy, 743 F. App’x 572, 573

   2 It is no answer to say we have to review Lavergne’s arguments to determine whether
the Government can enforce the appeal waiver. See ante at 4 n.1. “[I]t is familiar law that a
federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz,
536 U.S. 622, 628 (2002). The question is what to do after we’ve conducted that review and
determined the appeal waiver bars Lavergne’s claims.
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(5th Cir. 2018); see also 15B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND   PROCEDURE § 3918.8 (2012) [hereinafter WRIGHT & MILLER]. Even when
we evaluate arguments addressing why the appeal waiver should not be
enforced, we dismiss. See Casillas, 853 F.3d at 218.
       We do the same thing in the civil context. See, e.g., Campbell Harrison
& Dagley, L.L.P. v. Hill, 582 Fed. App’x 522, 524 (5th Cir. 2014); Hill v.
Schilling, 495 Fed. App’x 480, 487 (5th Cir. 2012). For example, sometimes
parties will agree between themselves to submit a dispute “for resolution by
the District Court” alone. Schilling, 582 F. App’x at 487. So long as the party
understood “the right to appeal that he or she [was] giving up,” the waiver will
be enforced, and the appeal dismissed. Id. at 488; see also 15A WRIGHT &
MILLER, supra, § 3901.
       Third, dismissal accords with our approach to analogous contexts. Take
for example a run-of-the-mill liability waiver. Let’s say B sues A for negligence
and invokes the federal court’s jurisdiction under 28 U.S.C. § 1332. But A says
the lawsuit is barred by a liability waiver. If the waiver is lawful and B’s claims
fall within the bounds of the waiver, the case will be dismissed. See, e.g., N. Y.
Pizzeria, Inc. v. Syal, 53 F. Supp. 3d 962, 966 (S.D. Tex. 2014) (dismissing
claims against a defendant because a liability waiver “categorically released”
him from liability); see also Jones v. Wells Fargo Bank, N.A., 626 F. App’x 500,
506 (5th Cir. 2015) (deciding not to enforce the liability waivers because the
waivers were invalid under Louisiana law). Whether A was actually negligent
towards B will never be determined—the waiver is enforced through the
dismissal of the claims.
       An appeal waiver is more-or-less the same. Just as a district court will
not decide a plaintiff ’s negligence claim when a liability waiver is properly
invoked, a court of appeals will not decide the appropriateness of a defendant’s


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sentence when an appeal waiver is properly enforced. We consider whether the
waiver is valid and whether the defendant’s claims are covered by the waiver.
Cf. Story, 439 F.3d at 229–30. If the claims are not covered by the waiver, we
let the appeal proceed. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019) (stating
that “an appeal waiver does not bar claims outside its scope”). But if the waiver
covers the defendant’s claims and thus bars the appeal, the appeal is at an end.
See ibid.; Bond, 414 F.3d at 546.
      Or take our approach to Anders cases. See Anders v. California, 386 U.S.
738 (1967). In the typical Anders case, a lawyer will seek to withdraw from
representing a defendant by filing a brief in this Court that outlines “anything
in the record that might arguably support the appeal.” Id. at 744. Should the
lawyer meet the minimum standards in their brief, the Court will
independently scrutinize “the portions of [the record] that relate to the issues
discussed in the brief.” United States v. Flores, 632 F.3d 229, 233 (5th Cir.
2011). If this independent review shows the appeal is “without merit,” then the
Court dismisses the appeal. Id. at 234. Our rules command that dismissal. See
5TH CIR. R. 42.2.
      We review many Anders cases. Obviously, we review “the merits” of those
cases. And many times, we’ll find those appeals to be without merit because of
the same flaw we face in this case: the enforcement of a valid appeal waiver.
See, e.g., United States v. Lovato, 698 F. App’x 791, 792 (5th Cir. 2017) (noting
that appeal must be “dismissed” because “any other potentially nonfrivolous
challenges are barred by the plea agreement”); United States v. Jones, 209 F.
App’x 446, 446 (5th Cir. 2006). If Anders cases are routinely dismissed by this
Court because of valid appeal waivers, then shouldn’t we apply the same
approach here? See 5TH CIR. R. 42.2; cf. Flores, 632 F.3d at 234.




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      In all of these cases—appeal waivers in the criminal context, appeal
waivers in the civil context, liability waivers, and Anders briefs—we must
carefully review the plaintiff ’s or appellant’s invocation of the judicial power.
In that limited sense, we review the “merits” of the arguments. But when we
find an obstacle, we stop. We don’t affirm, reverse, or vacate because the
appellant gave up his right to any appellate disposition at all. We simply
dismiss the appeal.
                                     *        *   *
      The majority is quite right that our Court has been inconsistent in its
approach to appeal waivers. See ante at 4 n.1 (majority op.). Sometimes our
cases purport to “affirm” the district court’s judgment—even though we never
explain how or why we think it appropriate to exercise the judicial power in
that way. When it comes to something as solemn and powerful as a federal
court judgment, however, I think more care is required.




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