Case: 12-40956 Document: 00512208116 Page: 1 Date Filed: 04/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2013
No. 12-40956
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PHILLIP A. LOWE,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:11-CR-133-1
Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Phillip A. Lowe appeals the sentence imposed following his guilty plea to
one count of wire fraud. He was sentenced to 70 months of imprisonment and
three years of supervised release. He contends that the district court erred by
denying him a reduction for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1. The Government responds that Lowe’s claim of error is barred by his
appeal waiver.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40956 Document: 00512208116 Page: 2 Date Filed: 04/15/2013
No. 12-40956
While recognizing the existence of the appeal waiver and certifying that
the Government intends to enforce the waiver, see United States v. Acquaye, 452
F.3d 380, 382 (5th Cir. 2006), Lowe has not challenged its validity on appeal, and
he has not asserted that he is appealing based on the exceptions to the appeal
waiver. A review of the record indicates that Lowe 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 challenge to the denial of a reduction for
acceptance of responsibility does not fall within the exceptions to the waiver.
Therefore, the appeal waiver bars the instant appeal.
Accordingly, the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
Counsel is WARNED that the filing of an appeal contrary to an appeal waiver
is a needless waste of resources and could result in sanctions. See United States
v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).
2