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

                                                                     FILED
                                                                  November 20, 2008
                                 No. 08-60059
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA
                                             Plaintiff-Appellee

v.

LEONARD GRIFFIN

                                             Defendant-Appellant


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 3:07-CR-75-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Leonard Griffin pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1), 924(e). The district court sentenced Griffin
to 180 months in prison, which was the statutory minimum sentence as a result
of Griffin’s prior convictions for “crimes of violence” and his status as an armed
career criminal. § 924(e)(1). On appeal, Griffin argues that the district court
erred in concluding that his prior felonies constituted crimes of violence.
      The Government has filed a motion to dismiss Griffin’s appeal, arguing


      *
      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should not be published and is not precedent except under the limited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.
                                 No. 08-60059

that this appeal is barred by the appellate waiver provision in Griffin’s written
plea agreement. Pursuant to the plea agreement, Griffin waived his right to
appeal his conviction and sentence on any ground whatsoever. Although Griffin
acknowledges the appellate waiver provision in his plea agreement, he argues
that during his rearraignment and in his objections to the presentence report,
he reserved his right to challenge the district court’s finding that he was an
armed career criminal.
      This court reviews de novo whether a waiver of appeal bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). To determine the
validity of an appeal waiver, this court conducts a two-step inquiry, asking
1) whether the waiver was knowing and voluntary and 2) whether, under the
plain language of the plea agreement, the waiver applies to the circumstances
at issue.   United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).         In
determining whether a waiver applies, this court employs ordinary principles of
contract interpretation, construing waivers narrowly and against the
Government. United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006).
      In the present case, Griffin signed the plea agreement, certified that he
read the agreement, reviewed the agreement with his attorney, and understood
and voluntarily consented to the agreement. At his rearraignment, Griffin
confirmed that he read and signed the plea agreement, including the appellate
waiver provision, and that he understood and agreed to its terms and conditions.
Thus, Griffin’s waiver was knowing and voluntary. See Bond, 414 F.3d at 544.
      The record further reflects that, during Griffin’s rearraignment, defense
counsel asserted a reservation of rights, which was ambiguous at best. In
response to the PSR, however, defense counsel resolved any ambiguity when he
asserted the following: “Defendant denies that his prior convictions of strong
arm robbery are factually or legally sufficient to trigger [the armed career
offender enhancement] and reserves his right to challenge said conclusions at his
sentencing hearing.” Griffin’s attorney’s comments did not alter the plain

                                       2
                               No. 08-60059

language of the waiver. See Bond, 414 F.3d at 544; Palmer, 456 F.3d at 488.
Accordingly, the Government’s motion to dismiss the appeal is GRANTED, and
the appeal is DISMISSED.




                                    3
