United States v. Cedrick Fowler

Case: 13-40792 Document: 00512645745 Page: 1 Date Filed: 05/29/2014

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

No. 13-40792
Fifth Circuit

FILED
Summary Calendar May 29, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff–Appellee,

CEDRICK FOWLER,

Defendant–Appellant.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:12-CR-27-2

Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Cedrick Fowler appeals the 245-month sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute
5 kilograms or more of cocaine. Fowler argues that the 2-level dangerous
weapon enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), was not warranted
because the evidence reflects that he was never seen physically possessing a
firearm. He contends that the appeal waiver in his plea agreement does not

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40792 Document: 00512645745 Page: 2 Date Filed: 05/29/2014

No. 13-40792

preclude him from raising this issue on appeal because he did not receive a fair
sentencing hearing.
The Government moves for summary dismissal of the appeal because
Fowler’s appeal is barred by the waiver of appeal in the plea agreement and
also because Fowler failed to file a timely notice of appeal. In the alternative,
the Government requests an extension of time to file its appellate brief.
The Government’s motion is well-taken on both grounds. Fowler’s notice
of appeal was not timely filed, and when the Government objects on that
ground, this court must enforce this claims-processing rule. See Eberhart v.
United States, 546 U.S. 12, 18 (2005). Even if we overlooked the untimeliness
of the notice of appeal, the record reflects that Fowler knowingly and
voluntarily waived his right to appeal his sentence, see United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994), and that his argument is barred by
the appeal waiver. Therefore, the Government’s motion for summary dismissal
is GRANTED, and the appeal is DISMISSED. The Government’s alternative
motion to extend the time to file its brief is DENIED as moot.