     Case: 17-50908      Document: 00514742291         Page: 1    Date Filed: 11/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-50908                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                      November 29, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

DAVERNE MICHAEL FOY,

              Defendant - Appellant




           Appeal from the United States United States District Court
                        for the Western District of Texas
                            USDC No. 1:17-CR-172-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Daverne Michael Foy appeals the 90-month, above-guidelines sentence
he received upon pleading guilty to conspiracy to distribute and possess with
intent to distribute 100 kilograms or more of marijuana. Foy asserts that the
district court plainly erred by applying an upward variance based on
uncharged criminal conduct.             He also contends that his sentence is



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50908    Document: 00514742291     Page: 2   Date Filed: 11/29/2018



                                 No. 17-50908
procedurally and substantively unreasonable. The Government asks us to
enforce the waiver, contained in the plea agreement, of Foy’s right to appeal
his sentence “on any ground, including . . . the determination of any period of
confinement[.]”
      “[A] defendant may, as part of a valid plea agreement, waive his
statutory right to appeal his sentence.” United States v. Melancon, 972 F.2d
566, 568 (5th Cir. 1992). We review de novo whether the appeal waiver bars
Foy’s appeal. See United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In
so doing, we “conduct a two-step inquiry: (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).
      Foy does not argue that his appeal waiver was in any way unintelligent
or involuntary and has therefore waived that issue. See United States v.
Reagan, 596 F.3d 251, 254 (5th Cir. 2010). In any event, the record reflects
that Foy’s waiver of his appeal rights was “a voluntary, knowing, and
intelligent act.” United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996).
Furthermore, the waiver applies to the circumstances at issue in this case; the
sole exception, permitting an appeal of a sentence exceeding the statutory
maximum, is inapplicable. See 21 U.S.C. § 841(b)(1)(B)(vii). Although the
district court wrongly advised Foy that he could appeal his above-guidelines
sentence notwithstanding the waiver, it did so only at sentencing; as such, the
court’s misstatement “ha[d] no effect on the validity of the waiver.” United
States v. Gonzalez, 259 F.3d 355, 358 (5th Cir. 2001).
      Because Foy made an informed and voluntary waiver of his right to
appeal his sentence on the grounds he now advances, the Government is
entitled to enforcement of the plea agreement. See United States v. Story, 439
F.3d 226, 230 n.5 (5th Cir. 2006). Accordingly, Foy’s appeal is DISMISSED.
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