IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-21044
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIRON WEBSTER OLIVER,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
(CR H-94-231-3)
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October 9, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
In this appeal, defendant-appellant Diron Oliver (Oliver)
complains of the sentence imposed under the United States
Sentencing Guidelines (U.S.S.G.) following his conviction on a plea
of guilty to a charge of receiving stolen money from a federally
insured bank in violation of 18 U.S.C. § 2113(c). Oliver raises
two arguments on appeal: (1) the district court erred in not
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
awarding him a two-level reduction for acceptance of responsibility
under section 3E1.1 of the U.S.S.G. and (2) the government breached
the plea agreement by failing to recommend to the court that Oliver
receive a reduction for acceptance of responsibility. For the
reasons that follow, we affirm.
Facts and Proceedings Below
On August 23, 1994, twelve individuals, armed with .9 and .45
millimeter handguns and shotguns, robbed the Normangee State Bank
of Normangee, Texas. One of those individuals, Steven Thomas,
contacted Oliver and enlisted Oliver’s assistance to transport him
and harbor him in Oliver’s residence. Oliver later came into
knowing possession of the proceeds of the bank robbery, which
included giving Thomas’s girlfriend $750 of the stolen money and
using the proceeds to purchase money orders.
Oliver was charged by indictment with being an accessory after
the fact of the bank robbery in violation of 18 U.S.C. § 3 (Count
1) and receiving stolen money in violation of 18 U.S.C. § 2113(c)
(Count 3). On February 3, 1995, pursuant to Federal Rule of
Criminal Procedure 11(e)(1)(A) & (B), Oliver entered into a written
plea agreement with the government. Oliver agreed to plead guilty
to Count 3 and to waive the right to appeal his sentence, with two
limited exceptions: Oliver could appeal his sentence if the court
(1) imposed a sentence above the statutory maximum or (2) applied
an upward departure from the U.S.S.G. where the government does not
2
request such a departure. In exchange, the government agreed to
dismiss Count 1, and to make a nonbinding recommendation to the
court that Oliver be awarded a reduction for acceptance of
responsibility “if, in the Government’s opinion, the defendant is
entitled to such a reduction.”
On November 20, 1995, the Presentence Investigation Report
(PSR) was disclosed, recommending denial of a downward adjustment
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
Oliver initially filed written objections to the PSR challenging
the probation department’s recommendation, but at sentencing
withdrew his objections.
At sentencing, the government advised the court that Oliver
had cooperated with the government and recommended that Oliver be
sentenced at the lower end of the guideline range. The court chose
not to follow the government’s recommendation, and instead
sentenced Oliver within, but at the higher end of, the guideline
range. Oliver received a 14-month term of imprisonment, a 2-year
term of supervised release, and was ordered to pay $50 in mandatory
cost assessments.
Discussion
Oliver’s first argument on appeal is that the district court
misapplied the sentencing guidelines by not awarding a two-point
reduction in his offense level for acceptance of responsibility
despite his written statement in the PSR indicating he fully
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understood the “thoughtless and harmful” nature of the crime he had
committed. This argument is without merit, however, because Oliver
voluntarily waived his right to appeal his sentence, and thus is
precluded from raising the issue before this Court.
The right to appeal is not a constitutional right, but rather
a statutory right. United States v. Henderson, 72 F.3d 463, 464-65
(5th Cir. 1995) (citing Abney v. United States, 431 U.S. 651, 656,
97 S.Ct. 2034, 2038 (1977)). A defendant may waive statutory
rights, including the right to appeal, as part of a plea bargaining
agreement so long as the waiver is informed and voluntary. United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Here,
Oliver does not assert that his plea was either unknowing or
involuntary. Furthermore, after a de novo review of the record, we
must conclude that the plea was both informed and voluntary.
The plea agreement, signed by Oliver, provides that he
knowingly waives the right to appeal the sentence or the manner in
which it was determined, except that Oliver may appeal a sentence
imposed by the court above the statutory maximum or if the court
departs upward from the sentencing guidelines despite the
government’s decision not to request such a departure. The
agreement goes on to state that the government “does not make any
promise or representation concerning what sentence the defendant
will receive. Realizing the uncertainty in estimating what
sentence the defendant will ultimately receive, the defendant
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knowingly waives the right to appeal the sentence in exchange for
the concessions made by the United States in this plea agreement.”
Moreover, during the rearraignment colloquy, the court asked
Oliver whether he understood that the court was not required to
accept the government’s recommendation for a reduction and whether
he understood that by pleading guilty he was waiving his right to
appeal the sentence. To these questions, Oliver answered “Yes,
your honor.”
Because Oliver’s sentence did not exceed the ten-year
statutory maximum or constitute an upward departure from the
guidelines, and because he knowingly and voluntarily waived the
right to appeal his sentence, Oliver cannot challenge his sentence
on appeal.
Oliver’s second argument is that the government violated the
terms of the plea agreement by failing to recommend to the court at
sentencing that Oliver receive an offense level reduction for
acceptance of responsibility. Because the prosecutor failed to
recommend explicitly that Oliver receive a downward adjustment, and
instead asked the court that “Mr. Oliver be sentenced to the lower
end of the applicable guideline range,” Oliver asserts the
government breached the agreement.
Oliver never objected below to the government’s failure to
request a guideline downward adjustment for acceptance of
responsibility. Moreover, at sentencing Oliver did not request an
acceptance of responsibility guideline adjustment and indeed
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withdrew his objection to the PSR’s failure to recommend such an
adjustment. Because Oliver raises this breach-of-plea-agreement
claim for the first time on appeal, this Court will apply the plain
error standard of review.1 United States v. Cerverizzo, 74 F.3d
629, 632-33 (5th Cir. 1996). Plain error is only established when
the defendant demonstrates that (1) there was an error; (2) the
error was clear and obvious; and (3) the error affected the
substantial rights of the appellant. Id. at 631. If these factors
are established, the decision to correct the error is within the
sound discretion of this Court, and this Court will not exercise
that discretion unless the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc)
(internal quotations and footnotes omitted), cert. denied, ___ U.S.
___, 115 S.Ct. 1266 (1995).
We are not convinced that plain error relief should be
afforded.
The PSR, in addition to not recommending acceptance of
responsibility, listed “factors that may warrant [upward]
departure,” stating, inter alia, “[t]he Court may wish to consider
1
The government argues that, although this Court has applied
the plain error standard to review breach-of-plea-agreement claims
raised for the first time on appeal, we should refuse to even
consider Oliver’s claim because he effectively waived it by waiving
his right to appeal his sentence and failing to object below. We
need not address this issue, because even under plain error
analysis, Oliver’s argument fails.
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an upward departure based on the defendant’s conduct which is not
sanctioned by the applicable guideline and is tantamount to
harboring a fugitive.”
At sentencing the district judge, despite the government’s
favorable recommendation on behalf of Oliver, chose to sentence
Oliver at the high end of the guideline range after taking into
consideration several factors:
“The Court is mindful of the Government’s
recommendation and the statements made on behalf of Mr.
Oliver. The Court does recall Mr. Oliver’s testimony
during the trial of this case.
The Court is also mindful of the fact that, as
pointed out in the presentence report, Mr. Oliver’s plea
to count 3 means that the conduct for which he is being
sentenced does not include the much harsher penalties
that would be triggered had he been convicted under count
1, accessory after the fact, although even the conduct to
which he has admitted in the statement that he’s filed
with the Court clearly suggests conduct that would fall
under the statute for accessory after the fact. The
sentencing in this case therefore presents the Court with
some troubling considerations.
But the Court is very much aware of Mr. Oliver’s
cooperation with the authorities.
. . . .
The Court has imposed a sentence at the high end of
the applicable guideline range in light of two major
factors. One is Mr. Oliver’s criminal history; and two
is the conduct that Mr. Oliver has himself admitted to,
the conduct that does go beyond simply receiving stolen
money. That is——the conduct that in this Court’s
judgment requires, in the interest of punishment, just
punishment, deterrence, and incapacitation, that the
sentence be imposed at the high end of the applicable
guideline range.”
Even if we assume, arguendo, that the government breached its
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plea agreement obligation to recommend downward adjustment for
acceptance of responsibility “if, in the Government’s opinion, the
defendant is entitled to such a reduction,” any such error is
certainly not plain or obvious, because the PSR did not recommend
the adjustment and defense counsel withdrew his objection to the
PSR’s failure to do so and requested no such adjustment. If it was
not defense counsel’s or the probation officer’s opinion that
defendant was entitled to such an adjustment, it is hardly plain or
obvious that the government was obligated to so conclude. Thus,
Oliver fails at least the second prong of the plain error analysis.
Moreover, Oliver has not demonstrated that the district court would
have accepted the government’s recommendation for acceptance of
responsibility adjustment, had it made one, particularly as the PSR
did not so recommend and defense counsel withdrew his objection to
its failure to do so. Cf. Calverley at 164-65 (burden on defendant
to show prejudice resulted). Thus, Oliver also fails the third
prong of the plain error analysis.
Finally, even if Oliver met all the first three elements of
the plain error test——which he does not——on consideration of the
record as a whole we would not exercise our discretion to recognize
the claimed error. We see no serious unfairness or miscarriage of
justice.
Conclusion
Oliver’s conviction and sentence are accordingly
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AFFIRMED.
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