UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10100
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LATOJA E. HALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CR-211-2-H)
February 18, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The prior Order of this Court consolidating this case with No.
98-10098, United States of America v. Jashawn R. Smith, is
rescinded and this case is severed for separate decision.
BACKGROUND
*
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this opinion should not be published and is not precedent except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.
Latoja E. Hall (hereinafter "Hall") and Jashawn R. Smith
(hereinafter "Smith") were unemployed and decided to rob someone
and move to Kansas City. Hall and Smith were black females and
they decided to kidnap an elderly white female, rob her and steal
her vehicle. On May 23, 1997, at 2:00 p.m., Hall and Smith
approached the vehicle of Virginia Hope Wyatt, a 72-year-old white
female (hereinafter "Wyatt"). Using a .45 caliber toy pistol,
Smith and Hall entered Wyatt’s vehicle and ordered her to drive out
of the parking area of the mall. They drove to Wyatt’s bank and
ordered Wyatt to cash a $500 check. Smith and Hall later took a
white gold diamond solitaire ring and a watch from Wyatt and traded
them in at a pawn shop for a necklace and a portable CD player.
Smith and Hall traveled north from Dallas using Wyatt’s credit card
to get gas several times. Sometime between 10:00 and 11:00 p.m.,
they drove into Oklahoma and Wyatt was forced to lie down on the
floorboards whenever they approached a toll booth. Shortly before
midnight, Hall wrapped Wyatt’s hands together with duct tape and
Smith and Hall also bound Wyatt’s feet. Smith and Hall placed a
plastic bag over Wyatt’s head. Although Wyatt resisted, Smith and
Hall wrapped duct tape around the plastic, covering Wyatt’s nose
and mouth. They then threw Wyatt over a guard rail where Wyatt
fell about 32 feet down an embankment. Smith and Hall then drove
away. Wyatt managed to force a hole through the plastic at the
corner of her mouth and then managed to slither up the embankment
to get back to the highway. At about 5:00 a.m. on May 24, the
Oklahoma Highway Patrol found Wyatt along the side of the highway.
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Wyatt’s car was recovered on the night of May 28, 1997, in Kansas
City and Smith and Hall were arrested at Smith’s mother’s home on
the evening of May 29, 1997.
Smith and Hall were indicted on June 24, 1997, with conspiracy
to kidnap (count 1), kidnaping (count 2), and car jacking (count
3). On September 16, 1997, Hall pleaded guilty to kidnaping by
written plea agreement. One paragraph in the agreement indicated
that Hall waived her right to appeal other than in limited
circumstances. On January 15, 1998, Hall was sentenced to serve
300 months in prison, five years of supervised release, and to pay
restitution in the amount of $1,045. Hall timely appealed. Hall
challenges the sentence imposed by the district court on the
grounds that the sentence was based on a cross-reference in
U.S.S.G. § 2A4.1(a), the kidnaping guideline, to U.S.S.G. § 2A1.1,
the first-degree murder guideline. Hall argued that this was
improper because Wyatt, the victim, did not die and because there
is a specific guideline covering attempted murder. The government
contends that Hall waived her right to appeal this element of her
sentence. Hall maintains that this appeal falls under the
exceptions to the waiver of the right of appeal in her plea
agreement.
We have carefully considered the briefs, the reply brief, the
record excerpts, and relevant portions of the record itself.
The right to appeal a criminal conviction is a statutory, not
a constitutional, right. United States v. Henderson, 72 F.3d 463,
464-465 (5th Cir. 1995). A defendant may waive his statutory right
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to appeal in a valid plea agreement if the waiver is knowing and
voluntary. United States v. Melancon, 972 F.2d 566, 567 (5th Cir.
1992). Hall admits that she was aware of the waiver and does not
contest its validity. Instead, she tries to fit her appeal into
its exceptions. These attempts are unavailing. If the record of
the Rule 11 hearing clearly indicates that the defendant read and
understood the plea agreement and that she raised no question about
the waiver-of-appeal provision, she will be held to the bargain
regardless of whether the court specifically admonished her
concerning the waiver of appeal. United States v. Portillo, 18
F.3d 290, 293 (5th Cir. 1994). Under Melancon and Portillo, the
plea agreement is valid, including Hall’s waiver of a challenge to
her as yet unimposed sentence. We therefore hold that Hall’s
appeal should be dismissed because she has waived the right to
appeal her sentence.
APPEAL DISMISSED.
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