United States v. Don Andrew, Jr.

Case: 15-30202 Document: 00513617227 Page: 1 Date Filed: 08/01/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-30202
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
August 1, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

DON M. ANDREW, JR.,

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CR-266-2

Before WIENER, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Don M. Andrew, Jr., pleaded guilty to multiple counts of conspiracy,
arson, wire and mail fraud, and use of fire to commit a federal felony and was
sentenced to a total of 240 months of imprisonment and a five-year term of
supervised release. Andrew’s plea was made pursuant to a Federal Rule of
Criminal Procedure 11(c)(1)(C) plea agreement, which stipulated that the

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30202 Document: 00513617227 Page: 2 Date Filed: 08/01/2016

No. 15-30202

parties agreed to the imposition of a 240-month sentence and contained a
waiver of the right to appeal.
On appeal, Andrew argues that the district court plainly erred by failing
to provide fact-specific reasons for imposing the sentence. The Government
moves to dismiss the appeal as barred by a knowing and voluntary appeal
waiver, or alternatively, for summary affirmance or an extension of time to file
a merits brief.
To determine whether Andrew’s appeal of his sentence is barred by the
appeal waiver, we analyze whether the waiver was knowing and voluntary and
whether the waiver applies to the circumstances at hand, based on the plain
language of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005). As Andrew concedes, his challenge to his sentence falls within the scope
of his appeal waiver. Further, the record reflects that Andrew knew that he
had a right to appeal and that he was giving up that right; thus, the waiver
was knowing and voluntary. United States v. McKinney, 406 F.3d 744, 746 n.2
(5th Cir. 2005). Although he asserts that he could not have knowingly and
voluntarily waived his right to appeal his sentence before it was imposed, “the
uncertainty of [an] Appellant’s sentence does not render his waiver
uninformed.” United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).
Accordingly, the Government’s motion to dismiss is GRANTED, and the
appeal is DISMISSED. The Government’s alternative motion for summary
affirmance is DENIED, and the motion for an extension of time to file a merits
brief is DENIED as unnecessary.

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