UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21060
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD LOUIS CAPALDI,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
January 26, 1998
Before POLITZ, Chief Judge, WIENER and DENNIS, Circuit Judges.
POLITZ, Chief Judge:
Leonard Louis Capaldi appeals his resentencing on remand for convictions
on guilty pleas of bank fraud, aiding and abetting, and commercial bribery. 1
Capaldi contends that the district court erred by adjusting his offense level upward
because of his role in the offenses and by declining to adjust his offense level
downward for acceptance of responsibility. The government moves for dismissal
of the appeal because Capaldi waived his right to appeal sentencing guideline
issues.
1
18 U.S.C. §§ 2, 215(a)(1), 1344, and 1346.
On the first appeal herein we determined that Capaldi had waived his right
to appeal the issues he now assigns as error.2 Capaldi contends, however, that his
earlier waiver of the right to appeal does not preclude his raising sentencing
guideline issues following his resentencing on remand. We previously have held
that a defendant may waive the right to appeal,3 but we have not before addressed
the issue presented herein -- specifically, whether a waiver of the right to appeal
survives a remand and is enforceable as respects the resentencing on remand.
We have considered the related question whether a plea agreement remains
binding on remand and have indicated that it does.4 Our colleagues in the Seventh
Circuit have reached the conclusion that once accepted by the court the plea
agreement is binding on the court and parties on remand.5 But we are aware of no
dispositive resolution of the specific issue presented herein.
In reaching a plea agreement the parties may include a provision that the
defendant totally waives the right to appeal the conviction and sentence or partially
waives same as relates to the sentence. In the latter situation, the defendant may
reserve the right to appeal the sentence respecting certain issues. Implicit in any
waiver is the assumption that the sentence imposed will be consistent with the
applicable statute and sentencing guidelines. A waiver of that assumption must be
2
United States v. Capaldi, No. 95-20673 (5th Cir. Aug. 29, 1996)
(unpublished).
3
United States v. Melancon, 972 F.2d 566 (5th Cir. 1992).
4
United States v. Valencia, 985 F.2d 758 (5th Cir. 1993).
5
United States v. Ritsema, 89 F.3d 392 (7th Cir. 1996).
2
explicit; it will not be deemed implicit in a general waiver. As always, any waiver,
full or partial, will only be valid if knowingly and voluntarily made by the
defendant.
We therefore now conclude and hold that once a plea agreement has been
accepted by the trial court, a provision thereof waiving appeal survives and is fully
enforceable in proceedings on remand and, if it otherwise complies with controlling
law, will be enforced on appeal. Applying that rubric to today’s appeal we hold
that Capaldi’s waiver of appeal is valid and enforceable, that it applies to the issues
he raises on this appeal, and, accordingly, that his appeal must be and is
DISMISSED.
3