     Case: 18-40177      Document: 00514752330         Page: 1    Date Filed: 12/07/2018




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


                                    No. 18-40177                           FILED
                                  Summary Calendar                  December 7, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

CORNELL SIMON,

                                                 Defendant - Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 3:15-CR-24-2


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Cornell Simon pleaded guilty to aiding and
abetting bank robbery and aiding and abetting the use and brandishing of a
firearm during and in relation to a crime of violence and received a 199-month
aggregate sentence. He now insists that the district court erred by applying a
four-level enhancement for abduction under the Sentencing Guidelines. See
U.S.S.G. § 2B3.1(b)(4)(A).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40177   Document: 00514752330   Page: 2   Date Filed: 12/07/2018


                                 No. 18-40177

        The written plea agreement that Simon entered into with the
Government included a waiver of Simon’s right to appeal or collaterally attack
his convictions or sentence aside from claims of ineffective assistance of
counsel. Simon argues that the appeal waiver is invalid because the district
court failed to admonish him about it during his plea colloquy as required by
Federal Rule of Criminal Procedure 11(b)(1)(N).       Because Simon “did not
specifically object to the district court’s plea colloquy as it pertains to Rule
11(b)(1)(N),” we review for plain error. United States v. Oliver, 630 F.3d 397,
411-12 (5th Cir. 2011).
        A defendant may waive his statutory right to appeal if the waiver is
knowing and voluntary. United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005). This court “conduct[s] 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).
        For an appeal waiver to be knowing and voluntary, the “defendant must
know that he had a right to appeal his sentence and that he was giving up that
right.” United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). Together,
the signed plea agreement, addendum, and transcript of the rearraignment
hearing support a conclusion that Simon knowingly and voluntarily waived his
right to appeal despite the alleged Rule 11 error. See McKinney, 406 F.3d at
746.     Although Simon suggests that this is insufficient to satisfy Rule
11(b)(1)(N), he fails to establish clear or obvious error. See United States v.
Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009). When viewed in light of
the record as a whole, he has not shown an effect on his substantial rights. Cf.
Oliver, 630 F.3d at 412.




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    Case: 18-40177    Document: 00514752330     Page: 3   Date Filed: 12/07/2018


                                 No. 18-40177

      The appeal waiver applies to Simon’s challenge to the Guidelines
enhancement, so we DISMISS his appeal. See United States v. Higgins, 739
F.3d 733, 739 (5th Cir. 2014).




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