     Case: 15-60415      Document: 00513560728         Page: 1    Date Filed: 06/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60415
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 22, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EDWARD DONNELL AMMONS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:14-CR-74-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Pursuant to an agreement with the Government, Edward Donnell
Ammons pleaded guilty to one count each of conspiracy to possess with intent
to distribute 100 grams or more of heroin and possession of a firearm by a felon.
The district court imposed concurrent 188-month within-guidelines sentences
on each count.       Ammons appeals his sentences, arguing that they were
improperly calculated and/or enhanced, including under the Armed Career


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60415     Document: 00513560728     Page: 2   Date Filed: 06/22/2016


                                  No. 15-60415

Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1). The Government moves to
dismiss the appeal, or, alternatively, for summary affirmance, asserting that
Ammons’s challenges to his sentences are barred by the appeal waiver
contained in his plea agreement.
      “This court reviews de novo whether an appeal waiver bars an appeal.”
United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014), cert. denied, 135 S.
Ct. 1174 (2015). In so doing, we “conduct a two-step inquiry: (1) whether the
waiver was knowing and voluntary and (2) whether the waiver applies to the
circumstances at hand, based on the plain language of the agreement.” United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      At the plea hearing, Ammons affirmed to the district court that he had
read and discussed with counsel all of the terms of the plea agreement,
including the waiver of his right to appeal, and that he both understood and
voluntarily agreed to those terms. The record thus reflects that Ammons knew
he had a right to appeal and that he was giving up that right. See United
States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005). To the extent
Ammons asserts that his plea was not knowing and voluntary because he did
not learn of his potential exposure to an enhanced sentence under the ACCA
until after he entered the plea, see United States v. Guerra, 94 F.3d 989, 995
(5th Cir. 1996), that assertion is contradicted by the record, which reflects that
Ammons was expressly advised about, and affirmed his understanding of, the
potential ACCA enhancement prior to his guilty plea. Accordingly, the first
step of our inquiry satisfies us that Ammons’s plea was both knowing and
voluntary. See Bond, 414 F.3d at 544; United States v. Dees, 125 F.3d 261, 269
(5th Cir. 1997).




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                                 No. 15-60415

      Moreover, afforded its plain meaning, the language of the appeal waiver
in Ammons’s plea agreement “applies to the circumstances at issue” in this
case. United States v. Harrison, 777 F.3d 227, 233 (5th Cir. 2015). That waiver
expressly bars an appeal “on any ground whatsoever,” except for a sentence
based on a departure from the Sentencing Guidelines. As the district court
imposed concurrent sentences within the applicable guidelines range, there
was no departure. See Irizarry v. United States, 553 U.S. 708, 714 (2008);
United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). Although Ammons
argues for an expansive definition of “departure” that would encompass any
claimed misapplication of the Guidelines, we adhere to the Supreme Court’s
strict delineation of that term. See Irizarry, 553 U.S. at 714.
      By its plain terms, to which Ammons freely and intelligently acceded,
the appeal waiver in this case suffices to bar review of Ammons’s sentences on
the grounds asserted. See Bond, 414 F.3d at 544; McKinney, 406 F.3d at 746.
The Government is entitled to enforcement of that waiver on contractual
grounds. See United States v. Story, 439 F.3d 226, 230 n.5 (5th Cir. 2006).
Accordingly, the motion to dismiss the appeal is GRANTED, and the appeal is
hereby DISMISSED. The motion for summary affirmance is DENIED.




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