United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 10, 2004
Charles R. Fulbruge III
Clerk
No. 03-11144
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY JAMES WILLIAMS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-139-ALL-H
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Larry James Williams, Jr., appeals his guilty-plea
conviction and sentence for possession of a firearm by a
convicted felon, a violation of 18 U.S.C. § 922(g), and his
enhanced 180-month prison sentence under 18 U.S.C. § 924(e), the
Armed Career Criminal Act (“ACCA”).
The Government has filed a motion to dismiss Williams’s
appeal on the ground that, through a provision in his plea
agreement, Williams waived his right to appeal. A defendant may
waive his right to appeal as part of a valid plea agreement if
*
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that this opinion should not be published and is not precedent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.
No. 03-11144
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the waiver is knowing and voluntary. United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999). A court applies “general
principles of contract law in order to interpret the terms of a
plea agreement.” United States v. Cantu, 185 F.3d 298, 304 (5th
Cir. 1999). A waiver-of-appeal provision is to be construed
against the Government, United States v. Somner, 127 F.3d 405,
408 (5th Cir. 1997), as the drafter of the agreement.
The waiver provision in Williams’s agreement specifically
reserved to him the right to appeal “any sentence in excess of a
statutory maximum.” (emphasis added). Williams’s plea agreement
noted that he faced two alternative statutory maximum prison
terms: a ten-year maximum under 18 U.S.C. § 924(a)(2) or a
maximum of life imprisonment under the enhancement provision, 18
U.S.C. § 924(e). Because the 15-year prison term imposed upon
Williams was “in excess” of “a statutory maximum,” Williams
reserved the right to appeal the sentence. The Government’s
motion to dismiss is DENIED.
For the first time on appeal, Williams raises a rather
convoluted challenge to his ACCA-enhanced sentence under Apprendi
v. New Jersey, 530 U.S. 466 (2000). The ACCA requires that the
prior convictions used for enhancement be based on offenses
“committed on occasions different from one another.” 18 U.S.C.
§ 924(e)(1). Williams maintains that Apprendi required that the
“separateness” of such offenses be proven to a jury beyond a
reasonable doubt, although Apprendi excepts from such requirement
No. 03-11144
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“the fact of a prior conviction.” See Apprendi, 530 U.S. at 490.
He admits that this is an issue of first impression in this
court.
Because Williams failed to inform the district court of the
specific grounds of his objection to the ACCA enhancement, this
court’s review of his Apprendi arguments is for plain error only.
See United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997).
Under the plain-error standard of review, the defendant bears the
burden of showing that (1) there is an error (2) that is clear or
obvious and (3) that affects substantial rights. See United
States v. Olano, 507 U.S. 725, 732-34 (1993). If these
conditions are satisfied, this court has the discretion to
correct the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736-37 (internal quotation marks and citation omitted). Because
Williams’s Apprendi argument would require an extension of this
court’s precedent, he cannot show that any error was “plain.”
See United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998).
To the extent that Williams challenges the ACCA enhancement
under the standard that normally applies to sentencing issues, he
has preserved the challenge for review. Williams has not,
however, shown that the five judgment orders from prior
convictions that the district court relied on to enhance his
sentence were “materially untrue, inaccurate or unreliable.”
See United States v. Morrow, 177 F.3d 272, 304 (5th Cir. 1999).
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That the dates of offenses entered upon the judgments may have
been only an “administrative convenience” under Texas law does
not mean that the judgments lacked sufficient indicia of
reliability to establish those dates in a federal sentencing
proceeding. See U.S.S.G. § 6A1.3.
The conviction and sentence are AFFIRMED.