Case: 22-40812 Document: 00516832585 Page: 1 Date Filed: 07/25/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40812
FILED
July 25, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
John Carl Ferrell, M.D.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:21-CR-167-1
______________________________
Before Davis, Ho, and Wilson, Circuit Judges.
Per Curiam:*
John Carl Ferrell pleaded guilty, pursuant to a written plea agreement
with an appeal waiver, to one count of conspiracy to possess with the intent
to distribute and dispense and distributing and dispensing of controlled
substances, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(B).
Following the Supreme Court’s decision in Ruan v. United States, 142 S. Ct.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40812 Document: 00516832585 Page: 2 Date Filed: 07/25/2023
No. 22-40812
2370 (2022), Farrell filed a motion to withdraw his plea. The district court
denied his motion and sentenced him to a 96-month term of imprisonment.
On appeal, Ferrell argues that the district court erred in denying his
motion to withdraw his guilty plea, and requests that his case be remanded to
the district court with instructions to do so. He contends that it was an error
for the district court to look at the transcript of his plea colloquy, and
specifically his actual admitted behavior, in denying his motion to withdraw
his plea. Farrell asserts that enforcing the plea agreement would result in a
miscarriage of justice.
We review whether an appeal waiver bars an appeal de novo. United
States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). When deciding “whether
an appeal of a sentence is barred by an appeal waiver provision in a plea
agreement, 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).
An appeal “waiver is both knowing and voluntary if the defendant
indicates that he read and understood the agreement and the agreement
contains an explicit, unambiguous waiver of appeal.” United States v. Kelly,
915 F.3d 344, 348 (5th Cir. 2019). The record shows that Farrell read and
reviewed the plea agreement with counsel, and that the terms of the plea are
clear and unambiguous. Accordingly, his plea was knowing and voluntary.
See id.
His plea agreement waived his right to appeal his conviction on all
grounds, reserving only the right to bring an appeal if the district court
sentenced him outside the terms of the agreement or to bring a claim of
ineffective assistance of counsel. It therefore applies to the current
circumstance, which does not implicate either scenario. See Bond, 414 F.3d
2
Case: 22-40812 Document: 00516832585 Page: 3 Date Filed: 07/25/2023
No. 22-40812
at 544. Regarding his contention that enforcing the appeal waiver would
result in a miscarriage of justice, we have “declined explicitly either to adopt
or to reject” a miscarriage-of-justice exception to the enforceability of appeal
waivers. United States v. Barnes, 953 F.3d 383, 389 (5th Cir. 2020).
Because the waiver is knowing and voluntary and applies to Farrell’s
challenge based on the plain language of the plea agreement, see Bond, 414
F.3d at 544, and because we have not explicitly recognized a miscarriage-of-
justice exception, the appeal is DISMISSED.
3