     Case: 09-51144     Document: 00511267861          Page: 1    Date Filed: 10/19/2010




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

                                                 FILED
                                                                          October 19, 2010
                                     No. 09-51144
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MELISSA COCKERHAM,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:07-CR-511-2


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Melissa Cockerham appeals her guilty-plea conviction for conspiring to
commit money laundering. Cockerham contends: her appeal waiver does not
bar her appeal; and, her Sixth Amendment right to a public trial was violated
because the courtroom was closed during her guilty-plea hearing.
        The Government does not invoke the appeal-waiver provision of
Cockerham’s plea agreement because that agreement bars only the appeal of her



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51144    Document: 00511267861 Page: 2         Date Filed: 10/19/2010
                                 No. 09-51144

sentence. Therefore, this appeal is not barred. See United States v. Story, 439
F.3d 226, 231 (5th Cir. 2006).
      “We review constitutional challenges de novo.” United States v. Joseph,
333 F.3d 587, 589 (5th Cir. 2003) (quotation omitted); see also United States v.
Osborne, 68 F.3d 94, 98 (5th Cir. 1995). Arguably, because the closed-courtroom
issue was not raised in district court, review would be only for plain error.
Under either standard, the claim fails.
      The Sixth Amendment guarantees a public trial to all criminal defendants.
Osborne, 68 F.3d at 98. A defendant may waive that right, however, by failing
to object to the closing of the courtroom. Peretz v. United States, 501 U.S. 923,
936 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960)); United
States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006).
      For the reasons that follow, Cockerham waived her right to public trial.
At the guilty-plea hearing, her husband pleaded guilty first. After his plea, but
before Cockerham’s, the court announced the courtroom had been closed for the
husband’s and Cockerham’s pleas. Cockerham and her counsel were present in
the courtroom at that time; there is no indication in the record either Cockerham
or her counsel objected to the closure of the courtroom before or during the plea
hearing, at any subsequent proceeding, or by way of a written motion. “Where
a defendant, with knowledge of the closure of the courtroom, fails to object, that
defendant waives [her] right to a public trial.” Hitt, 473 F.3d at 155 (citing
Levine, 362 U.S. at 618-19 (1960)). Moreover, “[a] defendant’s attorney’s waiver
of the right to a public trial is effective on the defendant”. Hitt, 473 F.3d at 155
(citing United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949)).
      AFFIRMED.




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