     Case: 17-60144      Document: 00514253175         Page: 1    Date Filed: 11/29/2017




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

                                    No. 17-60144
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        November 29, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

SAMUEL JOHN FRAZIER, also known as Johnny Frazier,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:16-CR-78-1


Before WIENER, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Samuel John Frazier appeals his guilty plea conviction for willful failure
to file a tax return and his within-Guidelines sentence of 12 months of
imprisonment.       The Government contends that Frazier knowingly and
voluntarily waived his right to appeal and that the appeal waiver bars
Frazier’s appeal. Because Frazier “did not specifically object to the district
court’s plea colloquy as it pertains to [Federal Rule of Criminal Procedure]


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-60144

11(b)(1)(N),” the court reviews for plain error. United States v. Oliver, 630 F.3d
397, 411–12 (5th Cir. 2011). To show plain error, the defendant must show
that the error was clear or obvious and affects his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). If the defendant makes such a
showing, this court has the discretion to correct the error, “which ought to be
exercised only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation marks and citation omitted).
      In his plea agreement, Frazier waived the right to appeal his conviction
and sentence but reserved the right to raise claims of ineffective assistance of
counsel, prosecutorial misconduct, a sentence in excess of the statutory
maximum, and a sentence based on an unconstitutional factor.              At the
rearraignment hearing, the district court did not ask Frazier whether he read
and understood the plea agreement, advise him of the appeal waiver, or ask
whether he understood the appeal waiver. The issue of whether a waiver bars
an appeal is not jurisdictional. United States v. Story, 439 F.3d 226, 230–31
(5th Cir. 2006). Therefore, we will pretermit the issue of whether Frazier
knowingly and voluntarily waived his right to appeal and will address the
merits of Frazier’s arguments.
      Frazier argues that the district court improperly interrupted and limited
his right to allocution. Because Frazier did not raise this argument in the
district court, review is limited to plain error. See United States v. Reyna, 358
F.3d 344, 350 (5th Cir. 2004) (en banc). The record does not support Frazier’s
arguments as it does not indicate that the district court limited Frazier’s
allocution to acceptance of responsibility. Although Frazier’s allocution was
interrupted by a bench conference, the district court subsequently allowed
Frazier to present his allocution without interruption. Therefore, Frazier has
not shown that the district court made any error that violated his right to



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                                 No. 17-60144

allocution. See United States v. Hernandez, 291 F.3d 313, 315–16 (5th Cir.
2002).
      Frazier has also failed to show that he was improperly subjected to cross-
examination by the Government during his allocution. The record shows that
Frazier was not subjected to cross-examination during allocution.
      Finally, Frazier argues that his sentence is procedurally and
substantively unreasonable because this is his first offense and the offense is
a misdemeanor. Contrary to Frazier’s argument, the district court did not act
beyond its authority when it imposed the within-Guidelines sentence. This
court has previously rejected the argument that a prior version of U.S.S.G.
§ 5B1.1 was inconsistent with 28 U.S.C. § 994(j). United States v. White, 869
F.2d 822, 827 (5th Cir. 1989). Further, the Sentencing Commission did not
adopt the proposed amendments discussed by Frazier, and he has not shown
that the district court erred in failing to consider them. He has also failed to
show that his sentence is substantively unreasonable. After considering the
Presentence Report, the 18 U.S.C. § 3553(a) factors, the parties’ arguments,
and Frazier’s allocution, the district court concluded that a sentence within the
advisory Guidelines range was appropriate.        Frazier’s arguments are not
sufficient to rebut the presumption of reasonableness that attaches to his
within-Guidelines sentence. See United States v. Tuma, 738 F.3d 681, 695 (5th
Cir. 2013).
      AFFIRMED.




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