     Case: 13-31197      Document: 00512926959         Page: 1    Date Filed: 02/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-31197
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 4, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

BRANDON J. THOMAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-206-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Brandon J. Thomas appeals the 90-month term of imprisonment
imposed on resentencing for his conviction for possession with intent to
distribute 50 grams or more of cocaine base. Thomas argues that the district
court erroneously based the upward variance on his prior involvement in dog
fighting and thus his sentence is greater than necessary to comply with the
purposes set forth in 18 U.S.C. § 3553(a)(2).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-31197    Document: 00512926959     Page: 2   Date Filed: 02/04/2015


                                 No. 13-31197

      In response to Thomas’s challenge to the substantive reasonableness of
his sentence, the Government argues, among other things, that this court
should dismiss Thomas’s appeal based upon the plea agreement’s appeal
waiver. Pursuant to the terms of the waiver, Thomas waived the right to
directly appeal his sentence on any ground, reserving only the right to
challenge any sentence imposed in excess of the statutory maximum; this
waiver includes the instant substantive reasonableness challenge. Because
the appeal waiver was knowing and voluntary and because the Government
seeks the enforcement of the appeal waiver, the appeal is dismissed. See
United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013), cert. denied, 134 S.
Ct. 1349 (2014).
      APPEAL DISMISSED.




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