Case: 20-60950 Document: 00515832514 Page: 1 Date Filed: 04/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 22, 2021
No. 20-60950 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jeffery Benard Brown,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:17-CR-22-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Jeffery Benard Brown pleaded guilty, pursuant to a written plea
agreement, to one count of possession of a firearm by a felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him to a
within-guidelines, 120-month term of imprisonment. On appeal, Brown
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-60950
argues that the Government breached the plea agreement by failing to move
for a substantial assistance departure or reduction. The Government moves
to dismiss based on the appeal waiver in Brown’s plea agreement or,
alternatively, for summary affirmance. In response, Brown argues that he did
not knowingly and voluntarily enter into the plea agreement.
As part of a valid plea agreement, a defendant may waive his statutory
right to appeal. United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). We
review the enforceability of an appeal waiver de novo. United States v.
Winchel, 896 F.3d 387, 388 (5th Cir. 2018). To determine whether the appeal
waiver bars an appeal, we “conduct a two-step inquiry: (1) whether the
waiver was knowing and voluntary and (2) 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). For a waiver to be
knowing and voluntary, the defendant must know that he has a right to appeal
and that he is giving up that right. See United States v. McKinney, 406 F.3d
744, 746 & n.2 (5th Cir. 2005). Brown’s contention that his waiver was not
knowing and voluntary is belied by the record. Brown was fully advised of his
right to appeal and he acknowledged that he understood what the waiver
connoted and its consequences. See id.
Brown asserts that the right to challenge a sentence should not be
waivable and that appeal waivers are unfair contracts of adhesion. However,
Brown has not identified any terms deemed unconscionable by this court.
We have routinely upheld appeal waivers similar to Brown’s. See, e.g., United
States v. Burns, 433 F.3d 442, 443-44, 449-50 (5th Cir. 2005); Bond, 414 F.3d
at 543-45. Moreover, it is well-settled that a defendant may waive his right
to appeal as part of a valid plea agreement. See Story, 439 F.3d at 231; United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Because Brown does
not allege any other basis for attacking the appeal waiver, the waiver is valid
and enforceable. See Bond, 414 F.3d at 544.
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No. 20-60950
An appeal waiver does not prevent a defendant from raising a claim
that the Government breached the plea agreement. See United States v.
Casillas, 853 F.3d 215, 217 (5th Cir. 2017). We apply general principles of
contract law in interpreting a plea agreement and consider “whether the
[G]overnment’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.” United States v. Hinojosa, 749 F.3d 407,
413 (5th Cir. 2014) (internal quotation marks and citation omitted). If the
language of a plea agreement is unambiguous, we “generally will not look
beyond the four corners of the document” to determine the intention of the
parties. United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013).
Here, the terms of the plea agreement are clear and unambiguous that
the Government had sole discretion to determine if Brown provided
substantial assistance, as well as sole discretion to request a downward
departure or sentence reduction even if Brown had provided substantial
assistance. Brown does not allege any unconstitutional motivation for the
Government’s conduct. See United States v. Aderholt, 87 F.3d 740, 743 (5th
Cir. 1996). Accordingly, Brown has failed to show that the Government
breached the plea agreement.
Because the appeal waiver is valid and enforceable and the
Government has invoked the waiver, Brown’s appeal is barred. See Story,
439 F.3d at 230 & n.5. The Government’s motion to dismiss the appeal is
GRANTED, and its alternative motion for summary affirmance is
DENIED. The appeal is DISMISSED.
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