     Case: 09-30850     Document: 00511104108          Page: 1    Date Filed: 05/07/2010




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

                                                  FILED
                                                                             May 7, 2010
                                     No. 09-30850
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROY MAURER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-112-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Roy Maurer appeals the 188-month sentence he received following his
guilty-plea conviction for distributing methamphetamine, in violation of 21
U.S.C. § 841(a). He seeks to challenge the district court’s calculation of his
guidelines range, specifically, the determination of the quantity of drugs
attributable to him as relevant conduct for sentencing purposes.                          The
Government argues that the appeal is barred by the appeal waiver in Maurer’s
plea agreement. Maurer contends that the waiver is unenforceable because the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30850    Document: 00511104108 Page: 2         Date Filed: 05/07/2010
                                 No. 09-30850

district court did not review the contents of the waiver verbatim with him after
it was read into the record and that, as a result, it cannot be said with certainty
that the waiver was knowingly and intelligently made. Maurer specifically
faults the district court for failing to advise him that the waiver would bar a
challenge to any relevant-conduct determinations.
      For a defendant’s waiver of his right to appeal 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. Portillo, 18 F.3d 290, 292
(5th Cir. 1994) (internal quotation marks and citation omitted). A waiver is both
knowing and voluntary if the defendant “indicated that he had read and
understood the plea agreement, which includes an explicit, unambiguous waiver
of appeal.” United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). As
part of the plea colloquy, the district court must address the defendant in open
court and determine whether the defendant understands the waiver. See F ED.
R. C RIM. P. 11(b)(1)(N). We review the validity of an appeal waiver de novo.
United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
      At rearraignment, the plea agreement was read in its entirety into the
record, and Maurer stated under oath that he had read and signed it. The
district court explained the waiver of appeal provision to Maurer, and Maurer
indicated that he had reviewed it with counsel and understood it. He raised no
question about his plea or the waiver provision. The waiver is therefore valid
and enforceable. See F ED. R. C RIM. P. 11(b)(1)(N); McKinney, 406 F.3d at 746.
      Maurer makes no argument that his sentencing challenge falls within one
of the enumerated exceptions to the waiver in his plea agreement. Instead, he
contends that, even if enforceable, the waiver should not bar his appeal because
the failure to consider his claim will result in a miscarriage of justice. This court
routinely has ruled that issues waived in a valid, enforceable appeal waiver need
not be considered. See, e.g., Bond, 414 F.3d 542, 546 (5th Cir. 2005); McKinney,
406 F.3d at 747. In the present case, we need not determine whether we should

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                                No. 09-30850

adopt a miscarriage-of-justice exception to the enforcement of appeal waivers
because Maurer’s substantive claim is a relatively standard challenge to the
district court’s guidelines range calculation that would not fall within a
miscarriage-of-justice exception. See United States v. Andis, 333 F.3d 886, 891-
92 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).
Maurer “is bound to his obligations under the plea agreement,” and the appeal
waiver bars his appeal. McKinney, 406 F.3d at 747.
      AFFIRMED.




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