     Case: 09-50271     Document: 00511083836          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 09-50271
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTHONY NORMAN ROARK,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                       USDC No. 5:07-CR-00092-WRF-ALL


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Anthony Norman Roark appeals his sentence, imposed for possession of
child pornography under 18 U.S.C. § 2252(A)(a)(5)(B). Roark pleaded guilty
following the denial of his motion to suppress and the district court sentenced
him to 51 months of imprisonment and 15 years of supervised release. Roark’s
written plea agreement contained a waiver of Roark’s right to appeal his
sentence or the manner in which it was determined, directly or in any other post-



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50271    Document: 00511083836 Page: 2        Date Filed: 04/19/2010
                                 No. 09-50271

conviction proceeding, for any reason other than an upward departure from the
advisory range under the United States Sentencing Guidelines.
      Roark asserts that the district court erred in accepting his guilty plea
without further inquiry into whether it was voluntary and knowing because he
equivocated in his admissions to the charges throughout the proceedings. The
record, however, establishes that Roark’s guilty plea was both knowing and
voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); F ED. R. C IV.
P. 11. As Roark did not object to any Rule 11 error in the district court, we
review for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). At
rearraignment, the magistrate judge advised Roark of his constitutional rights
and that he was waiving those rights by pleading guilty; Roark stated that he
understood at each point. See F ED. R. C RIM. P. 11(b)(1)(B)-(F). The magistrate
judge reviewed the conduct with which Roark was charged and the legal
elements of the offense and determined that Roark understood both and
admitted to the factual basis. See United States v. Marek, 238 F.3d 310, 315 (5th
Cir. 2001) (en banc); F ED. R. C RIM. P. 11(b)(3). The charge and the factual basis
were also both contained in the written plea agreement which Roark signed, and
the factual basis establishes that Roark’s conduct fell within the ambit of
§ 2252(A)(a)(5)(B). See United States v. Reasor, 418 F.3d 466, 470 (5th Cir.
2005). The magistrate judge advised Roark of the penalties for the charged
offense and Roark confirmed that he understood those penalties. See F ED.
R. C RIM. P. 11(b)(1)(H); United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir.
1992).
      The magistrate judge confirmed that Roark had signed a written plea
agreement, including a waiver of his right to appeal his sentence. See F ED.
R. C RIM . P. 11(b)(1)(N); United States v. Robinson, 187 F.3d 516, 517 (5th Cir.
1999). Roark acknowledged that he understood his plea agreement, specifically
including the waiver provision. See F ED. R. C RIM. P. 11(b)(1)(N); United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). The magistrate judge further advised

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                                 No. 09-50271

Roark that the district court would determine the appropriate sentence using the
Sentencing Guidelines and that the court could impose a sentence within, below,
or greater than the calculated range. See F ED. R. C RIM. P. 11(b)(1)(M); United
States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992). The magistrate judge
confirmed that Roark’s guilty plea was not a result of force, threats, or promises.
See F ED. R. C RIM. P. 11(b)(2). Roark himself stated that he was pleading guilty
because he was guilty, although he added that it was also in his “best interest”
to plead guilty.
      Roark’s “solemn declarations in open court carry a strong presumption of
verity,” and are further supported by a review of the whole record. See United
States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (internal quotation
marks and citation omitted); Vonn, 535 U.S. at 59. At the hearing on Roark’s
motion to suppress, the district court discussed in detail the charges against
Roark, the facts asserted in support of that charge, and Roark’s option to go to
trial rather than plead guilty. Roark also admitted to the probation officer
preparing the presentence report the same facts stated in the factual basis. See
United States v. Dyer, 136 F.3d 417, 425 n.13 (5th Cir. 1998). Roark has failed
to show that either his plea or his waiver of his right to appeal his sentence was
unknowing or involuntary. See Gaitan, 954 F.2d at 1011; Bond, 414 F.3d at 546.
      Because the appeal waiver is enforceable, we do not address Roark’s
challenge to the reasonableness of his sentence.
      The judgment of the district court is AFFIRMED.




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