United States v. Herbert Townsend

Case: 15-60704 Document: 00513613683 Page: 1 Date Filed: 07/28/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-60704
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
July 28, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

HERBERT JEROME TOWNSEND, also known as Smurf, also known as Papa
Smurf,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CR-118-1

Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
Herbert Jerome Townsend challenges the 384-month sentence he
received following his guilty plea conviction for conspiracy to possess with
intent to distribute more than 50 grams of methamphetamine. He asserts that
the district court erred in assessing the relevant drug quantity in order to
determine the base offense level and that he should not have received a four-

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60704 Document: 00513613683 Page: 2 Date Filed: 07/28/2016

No. 15-60704

level leadership enhancement. He also contends that his trial counsel
rendered ineffective assistance in conjunction with the plea proceedings,
although he does not seek to overturn his guilty plea. Relying on the appellate
waiver in the plea agreement, the Government seeks dismissal of the appeal
or, alternatively, summary affirmance of the district court’s judgment.
Townsend contends that the waiver should not bar his appeal in light of
counsel’s ineffectiveness and his belief that he had retained his right to appeal.
We review the validity of an appeal waiver de novo. United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The waiver provision broadly
waived Townsend’s right to appeal his conviction and sentence, without
reservation. The record of the rearraignment shows that the waiver was
knowing and voluntary, as Townsend knew he had the right to appeal and that
he was giving up that right in the plea agreement. See United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v. Portillo, 18 F.3d
290, 292 (5th Cir. 1994). Although Townsend now contends that his attorney
did not in fact fully explain to him the consequences of his plea or the waiver
provision, the record was not adequately developed before the district court to
permit a fair evaluation of the claim on direct appeal. See United States v.
Isgar, 739 F.3d 829, 841 (5th Cir. 2014); United States v. Stevens, 487 F.3d 232,
245 (5th Cir. 2007).
Because the plain language of the waiver provision applies to
Townsend’s appellate challenges, and because the record reflects that
Townsend understood the rights that he was waiving, we will enforce the
waiver and DISMISS the appeal. See 18 U.S.C. § 3742(a)(2); United States v.
Bond, 414 F.3d 542, 544, 546 (5th Cir. 2005). The Government’s motion to
dismiss is GRANTED, and its alternative motion for summary affirmance is
DENIED.

2