     Case: 18-11473      Document: 00515255649         Page: 1    Date Filed: 01/02/2020



           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-11473
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                 January 2, 2020

                                                 Plaintiff-Appellee        Lyle W. Cayce
                                                                                Clerk
v.

CEDRIC CHARLES WITCHER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:17-CR-567-14


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Cedric Charles Witcher pleaded guilty, pursuant to a plea agreement, to
one count of distribution of cocaine base. The plea agreement included a
waiver of Witcher’s right to appeal his sentence. He reserved the right to
appeal a sentence above the statutory maximum or an arithmetic error at
sentencing, to challenge the voluntariness of his guilty plea or the waiver, or
to raise a claim of ineffective assistance of counsel. The district court granted
the Government’s motion for an upward departure and sentenced Witcher to
120 months in prison.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11473

      Witcher argues that the appeal waiver should not be enforced on various
bases. We review de novo whether an appeal waiver provision bars an appeal.
See United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014); United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002).
      According to Witcher, the appeal waiver does not bar him from appealing
constitutional violations at sentencing or asserting that his sentence was based
on insufficient proof. He contends that, to the extent that the waiver bars such
claims, he did not knowingly and freely agree to the waiver. However, the plea
agreement and his averments to the district court at rearraignment reflect that
he knowingly and willingly agreed to waive his right to appeal under the terms
of the waiver. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
His sentencing claims are covered by the waiver and cannot be reviewed. See
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). He may not assert
the claims on the basis that he did not anticipate the purported constitutional
violations or the imposition of an allegedly invalid sentence. See United States
v. Melancon, 972 F.2d 566, 567-68, 572 (5th Cir. 1992).
      Further, Witcher argues that the appeal waiver is unenforceable because
he seeks to challenge the reasonableness and thus the legality of his sentence.
However, we have upheld broad appeal waivers, see United States v. Pizzolato,
655 F.3d 403, 405 (5th Cir. 2011), and his proposed claims are encompassed by
the scope of the appeal waiver in this case. See id.; Bond, 414 F.3d at 544-46.
Enforcement of the waiver does not violate public policy. See Melancon, 972
F.2d at 567.
      Witcher additionally contends that the waiver is unenforceable under a
miscarriage-of-justice exception. However, his claim lacks merit. He has failed
to identify the contours or legal basis of such an exception or establish that we
should apply the exception, which we have not recognized, for the first time in
this case. Regardless, even if such an exception existed, Witcher seeks to raise


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                                 No. 18-11473

the type of claims against which we have enforced waivers and, therefore, he
has not established that his claims would qualify for any such exception. See,
e.g., United States v. Keele, 755 F.3d 752, 756-57 (5th Cir. 2014); United States
v. Alvarado-Casas, 715 F.3d 945, 955-56 (5th Cir. 2013); Pizzolato, 655 F.3d at
412; United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002) (28 U.S.C.
§ 2255 case); cf. Melancon, 972 F.2d at 567 (holding that defendant may waive
constitutional rights pursuant to plea agreement).
      Finally, Witcher maintains that the appeal waiver is invalid because the
Government breached the plea agreement. He asserts that the Government’s
motion for an upward departure based on uncharged conduct was contrary to
its promises not to bring any further charges against him and to dismiss any
remaining charges. We review his contention for plain error. See United States
v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014).
      Witcher’s claim of a Government breach is not plainly supported by the
record or a reasonable interpretation of the plea agreement. Also, the available
caselaw does not support his position that a motion for an upward departure
is tantamount to the prosecution of a criminal offense. Thus, he has not shown
that it is clear or obvious that the Government breached the plea agreement.
See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Salinas,
480 F.3d 750, 758-59 (5th Cir. 2007).
      AFFIRMED.




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