                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                               No. 97-50852



                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,


                                  VERSUS


                          LYNN DALE MOORING,

                                                Petitioner-Appellant.




             Appeal from the United States District Court
                   for the Western District of Texas
                               (W-96-CA-423)


                               June 7, 1999
Before WIENER and PARKER, Circuit Judges, and LAKE, District

Judge.*

PER CURIAM:**

     Lynn Mooring (“Mooring”), federal inmate # 56290-080, appeals

the denial of his motion to vacate sentence filed pursuant to 28

U.S.C. § 2255.    We affirm.

    *
     District Judge for the Southern District of Texas, sitting by
designation.
        **
      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this opinion should not be published and is not precedent except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.

                                     1
     In 1992, Mooring pleaded guilty to possession of a listed

chemical in violation of 21 U.S.C. § 841(d).        Mooring’s guideline

sentence range was calculated at 360 months to life, but the

maximum term of imprisonment under § 841(d) is ten years.          Mooring

therefore received a 120-month prison term.            Although clearly

advised of his right to appeal by the district court, Mooring filed

no direct appeal.

     In October 1996, Mooring filed the instant pro se § 2255

motion to vacate, claiming, inter alia, that his attorney performed

ineffectively by failing to comply with his request that he file a

notice of appeal.1      The district court held a hearing on this

issue, at which Mooring, Mooring’s mother, Betty Elliot, and

Mooring’s trial attorney, Dick Kettler testified.           The district

court found that the testimony did not support Mooring’s claim that

he requested Kettler to file a notice of appeal, and that there was

no specific discussion about a fee arrangement for Kettler to

handle an appeal.     The district court further found that Mooring

expressed an interest in appeal, but Kettler advised against it

because, in his professional judgment, Mooring could possibly get

a higher sentence.     Based on these findings, the district court

concluded   that    Mooring   had   not   been   deprived   of   effective

assistance of counsel.

     On appeal from the denial of a § 2255 motion, this court


     1
      Mooring made other claims which the district court denied.
However, our grant of Certificate of Appealability was limited to
his claim of ineffective assistance of counsel based on the failure
to file a notice of appeal.

                                     2
reviews the district court’s factual findings for clear error and

its legal conclusions de novo.     United States v. Guerra, 94 F.3d

989, 992 (5th Cir. 1996).

     Mooring contends in his first point of error that the district

court erred in finding that Kettler was not ineffective for failing

to file a notice of appeal.    The district court’s finding amounted

to a determination that Mooring knowingly waived his right to

appeal.   “Waiver of the right to appeal ‘requires that there be

knowledge of the right to appeal and a failure to make known the

desire to exercise that right.’” United States v. Gipson, 985 F.2d

212, 216 (5th Cir. 1993)(citation omitted).        The trial court

informed Mooring in open court, on the record, that he had the

right to appeal and specifically that he was required to file a

notice of appeal within 10 days.      The district court’s implicit

finding that Mooring had knowledge of the right to appeal is not

clearly erroneous.

     There is no dispute that Kettler and Mooring discussed the

possibility of an appeal after sentencing and that Kettler advised

against pursuing an appeal.     However, a factual dispute existed

concerning whether or not Mooring made known his desire to exercise

his right to appeal.   Only Kettler and Mooring were privy to that

discussion and there exists no record establishing what was said.

The district court’s fact finding that Mooring failed to make known

his desire to appeal, based on live witness testimony and the

concomitant credibility determinations, was not clearly erroneous.

See Gipson, 985 F.2d at 216.


                                  3
      In his second point of error, Mooring contends that the

district court erroneously relied on the fact that Mooring and

Kettler had not discussed fees for an appeal because Mooring had

the right to an appointed attorney if he was unable to afford one.

The absence of a fee discussion was one factor, among several, that

the district court considered in reaching the conclusion that

Mooring had not requested Kettler to file an appeal.                 If Mooring

had discussed an appellant fee arrangement with Kettler, it would

have been some evidence that Mooring had communicated to Kettler

his desire to appeal.     See Gipson, 985 F.2d at 216-17 (considering

fee   discussion   between   attorney        and    appellant   as   one   factor

indicating that no waiver occurred); see also United States v.

Green, 882 F.2d 999 (5th Cir. 1989)(considering fee discussion with

attorney’s associate, as well as other factors, in concluding that

Green waived his right to appeal).                 We hold that the district

court’s   consideration      of   the       absence   of   an   appellate     fee

arrangement in deciding the question of waiver was not error.

      We therefore affirm the district court’s denial of Mooring’s

§ 2255 motion to vacate sentence.

      AFFIRMED.




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