     Case: 15-40035      Document: 00513211328         Page: 1    Date Filed: 09/29/2015




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

                                    No. 15-40035
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       September 29, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

SHANE PATRICK LAND,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:13-CR-19


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Shane Patrick Land appeals his conviction and sentence for wire fraud.
He was sentenced to serve 41 months in prison and ordered to pay $993,869.06
in restitution. Land’s agreement to plead guilty included a waiver of his right
to appeal. We agree with the government that the waiver is enforceable.
Accordingly, we 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-40035

      A defendant may waive his statutory right to appeal as part of a valid
plea agreement if (1) the waiver is knowing and voluntary, and (2) 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). Land
argues that, due to the absence of an audio recording of the rearraignment as
required by Federal Rule of Criminal Procedure 11(g), the appeal waiver
contained in his plea agreement is unenforceable. Further, Land claims the
absence of a recording unfairly prevents him from making a meaningful
argument that his guilty plea was not knowing and voluntary.
      The available record includes the plea agreement and factual statement,
the minute entry describing the rearraignment, the magistrate judge’s report
recommending acceptance of the guilty plea (to which Land did not object), and
the district court’s acceptance of Land’s guilty plea. This is a sufficient record
to review whether Land knowingly and voluntarily waived his right to appeal
his conviction and sentence.
      We have held that when the district judge fails to refer specifically to the
appeal waiver during the exchange required by Federal Rule of Criminal
Procedure 11, the waiver is still valid when: there is evidence that the
defendant read the agreement containing the waiver, the defendant indicates
he understood what was in the agreement, and no evidence indicates that the
defendant failed to understand the waiver. United States v. Portillo, 18 F.3d
290, 293 (5th Cir. 1994).      In two unpublished opinions that we conclude
properly analyzed the same questions we now face, panels of this court held
that when there was no recording of the Rule 11 hearing, the available record
may still support the voluntariness of the waiver. In one opinion, we held that
“the plea agreement, the factual resume, the magistrate judge’s report, and the
district court’s order adopting it, demonstrate[] that Williams knowingly and



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                                 No. 15-40035

voluntarily waived his right to appeal. . . .” United States v. Williams, 519 F.
App’x 303 (5th Cir. 2013). In another, we upheld the waiver based on the
following facts: the defendant signed the plea agreement, which included the
appeal waiver, beneath a statement that he had read and understood it; the
appeal waiver was concise and clear; the magistrate judge’s report and
recommendation found that the defendant understood the appeal waiver and
agreed to it; and the factual resume attached to the plea agreement also stated
that the defendant knowingly and voluntarily waived the right to appeal.
United States v. Palmer, 493 F. App’x 545, 547–48 (5th Cir. 2012).
      Land argues that a different unpublished opinion of this court should
lead us to invalidate the appeal waiver. See United States v. Helton, 203 F.
App’x 682 (5th Cir. 2006). There, the absence of a Rule 11 transcript caused
the court to set aside the appeal waiver. The decision not to enforce the waiver
was explained this way: “we decline to enforce the waiver as the re-
arraignment transcript has not been included in the record on appeal,
rendering it impossible to discern whether Helton knowingly and voluntarily
waived his right of appeal.” Helton, 203 F. App’x at 683. The opinion does not
suggest that the government argued that evidence other than the plea
agreement itself proved that the defendant’s appeal waiver was knowing and
voluntary.   Id. We do not see Helton as persuasively indicating we should
invalidate the appeal waiver here.
      We conclude there is no automatic invalidation of the waiver due to the
absence of a recording. The record in this case contains evidence that Land’s
appeal waiver was knowing and voluntary. Land’s plea agreement, which
contained the appeal waiver, includes his signature above a statement that he
fully understood and voluntarily entered into the agreement.         The appeal
waiver is clear and concise. Beyond the plea agreement itself, the magistrate’s



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                                 No. 15-40035

order recommending acceptance of the guilty plea states that the defendant
consulted with counsel and knowingly and voluntarily entered the guilty plea.
The defendant did not object to this factual finding. Additionally, the minute
entry from the rearraignment hearing before the magistrate judge reflects that
the court reviewed the plea agreement with Land and found the plea was
voluntarily and knowingly made. This evidence satisfies us that the appeal
waiver was voluntarily and knowingly made and is enforceable.
      Because the waiver states that Land waived his right to appeal his
conviction, sentence, and restitution order “on all grounds,” subject to certain
exceptions not here applicable, the plain language of the waiver bars Land’s
appellate claims. See Bond, 414 F.3d at 544. Accordingly, the government’s
motion to dismiss is GRANTED, its motion for summary affirmance is
DENIED, its alternative motion for extension of time is DENIED, and Land’s
motion for oral argument is DENIED.
      DISMISSED.




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