     Case: 09-10937 Document: 00511317508 Page: 1 Date Filed: 12/09/2010




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

                                                FILED
                                                                          December 9, 2010

                                       No. 09-10937                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

DANNY RAY BARRETT,

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:07-CR-358-1


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Danny Ray Barrett pleaded guilty to a superseding indictment charging
him with, inter alia, access device fraud (count 2) and wire fraud (count 5). The
district court sentenced him to 120 months on each count to be served
concurrently. Barrett seeks to appeal his sentence on the ground that the
district court failed to apply properly U.S.S.G. § 3C1.3 and 18 U.S.C. § 3147. We
conclude that Barrett’s appeal is barred by the appeal waiver of his plea
agreement and DISMISS the appeal.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10937 Document: 00511317508 Page: 2 Date Filed: 12/09/2010



                                  No. 09-10937

      As part of his plea agreement, Barrett waived his right to appeal, but he
reserved the right to challenge a sentence exceeding the statutory maximum
punishment, an arithmetic error at sentencing, the voluntariness of the plea or
the appeal waiver, and any alleged ineffective assistance of his counsel. Because
the Government seeks to enforce the appeal waiver, we consider its applicability.
See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). We apply a two-
step inquiry, asking “(1) whether the waiver was knowing and voluntary and (2)
whether the waiver applies to the circumstances at hand, based on the plain
language of the agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005). Barrett does not contest the voluntariness of his guilty plea or the appeal
waiver, so we proceed to the second step.
      Barrett argues that the appeal waiver is inapplicable here because he
challenges an arithmetic error at sentencing. We disagree. Barrett committed
his wire fraud offense while he was on pretrial release for the access device fraud
offense. As a result, Barrett received a 3-level adjustment to his base offense
level pursuant to U.S.S.G. § 3C1.3, which is designed to effectuate statutory
sentencing enhancements required by 18 U.S.C. § 3147. See United States v.
Dison, 573 F.3d 204, 207 n.7 (5th Cir. 2009).
      Under § 3147, a defendant convicted of an offense committed while on
release shall be sentenced, in addition to the sentence for the underlying offense,
to a separate consecutive term of imprisonment. See § 3147. The sentencing
guidelines instruct that where § 3147 is applicable, the district court should
apply a 3-level adjustment to the defendant’s offense level and should “divide the
sentence on the judgment form between the sentence attributable to the
underlying offense and the sentence attributable to the enhancement.” § 3C1.3,
cmt. n.1. The total sentence may not exceed the adjusted guideline range for the
underlying offense. Id. “For example, if the applicable adjusted guideline range
is 30-37 months and the court determines a ‘total punishment’ of 36 months is

                                        2
    Case: 09-10937 Document: 00511317508 Page: 3 Date Filed: 12/09/2010



                                  No. 09-10937

appropriate, a sentence of 30 months for the underlying offense plus 6 months
under 18 U.S.C. § 3147 would satisfy this requirement.” Id. The guideline’s
purpose is to “enable[] the court to determine and implement a combined ‘total
punishment’ consistent with the overall structure of the guidelines, while at the
same time complying with the statutory requirement.” Id., cmt. background.
      Barrett argues that the district court failed to impose a sentence in accord
with § 3C1.3 and § 3147 because the court did not apportion any part of the
sentence between the underlying offense and the enhancement.               Barrett
contends that this was an arithmetic error because the guideline requires the
district court to divide the sentence. We are not persuaded.
      Nothing in Barrett’s plea agreement or in his plea colloquy leads us to
believe that the parties intended the phrase “arithmetic error” as used in the
appeal waiver to mean anything beyond its plain text as an error involving a
mathematical calculation. See Bond, 414 F.3d at 545 (“We must interpret the
plea agreement like a contract, in accord with what the parties intended.”).
Barrett argues that the most common mathematical operations are addition,
subtraction, multiplication, and division, and that because the district court
failed to divide the sentence and subtract the penalty provision from the total
punishment, the district court’s error here was a mathematical error. But the
district court’s application of § 3C1.3 does not merely require the court to divide
and subtract according to a pure mathematical formula.          Barrett does not
complain, for example, that the district court miscalculated the adjusted
guideline range. Rather, the court is called upon to exercise its judgment in
apportioning the total punishment between the sentence for the underlying
offense and the separate, consecutive sentence due to the enhancement provision
of § 3147.     The guidelines provide no mathematical formula for this
apportionment.



                                        3
    Case: 09-10937 Document: 00511317508 Page: 4 Date Filed: 12/09/2010



                                   No. 09-10937

      Barrett argues that the court failed to apportion the sentence at all, and
that the court’s error resulted in a “misapplication” of § 3C1.3 that “violated” the
statutory requirements of § 3147. Barrett’s argument is a direct challenge to the
district court’s application of the sentencing guidelines.      Such a challenge,
however, has been waived in the plea agreement. Accordingly, the appeal must
be dismissed.
      APPEAL DISMISSED.




                                         4
