UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-60879
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LEROY BAYMON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
November 15, 2002
Before HIGGINBOTHAM, DUHE! and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Leroy Baymon, Jr., was charged by bill of information with
four counts of being a public official who accepted a thing of
value in return for introducing prohibited contraband into a
federal prison in violation of 18 U.S.C. § 201(b)(2)(C). Pursuant
to a plea agreement, he pled guilty to two counts of the bill of
information. In the plea agreement, Baymon waived his right to
appeal his conviction and his sentence. He was sentenced and now
appeals claiming that his waiver does not prevent this appeal, the
district court committed plain error because the conduct alleged by
the government and admitted by him did not constitute a violation
of 18 U.S.C. § 201(b)(2)(C), and, in the alternative, pursuant to
the United States Sentencing Guidelines he should have been given
a reduction in his sentence for acceptance of responsibility.
BACKGROUND
Leroy Baymon, Jr., worked as a cook foreman at Yazoo City
Federal Correctional Facility. On April 17, 2001, Baymon was
charged by bill of information with four counts of accepting bribes
to introduce contraband into a federal correctional facility.
Counts 1 and 2 alleged Baymon received postal money orders in
exchange for smuggling in cell phones. Counts 3 and 4 alleged
Baymon received $300 in postal money orders in exchange for
smuggling in a watch and a chain and medallion. All these items
were considered prohibited contraband and employees of the prison
were not allowed to give these items to prisoners.
On June 18, 2001, Baymon waived indictment and pled guilty to
counts 3 and 4 pursuant to a plea agreement, which contained an
appeal waiver. The waiver provision stated in pertinent part:
The Defendant . . . hereby expressly waives the right to
appeal the conviction and/or sentence imposed in this
case, or the manner in which that sentence was imposed,
on the grounds set forth in Section 3742, or on any
ground whatsoever, and expressly waives the right to
contest the conviction and/or sentence or the manner in
which the sentence was imposed in any post-conviction
proceeding, including but not limited to a motion brought
under Section 2255, Title 28, United States Code and any
type of proceeding claiming double jeopardy or excessive
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penalty as a result of any forfeiture ordered or to be
ordered in this case.
R. at vol. 1, p. 15.
During the guilty plea hearing on June 18, 2001, Baymon was
placed under oath and he admitted to being a “public official”
working at the prison and that he smuggled in prohibited contraband
in exchange for the postal money orders. Additionally, before
accepting Baymon’s guilty plea, the district court directed Baymon
to listen to the prosecutor’s description of “any Memorandum of
Understanding that [the prosecutor] might have with this defendant,
particular referencing any waivers of appeal that may be contained
therein.” R. at vol. 2, p. 12. The prosecutor then recited the
terms of the plea agreement. Then the court made sure the
agreement was signed by all the parties. Following a recital of
the factual basis for the plea by the prosecutor, which referenced
Baymon’s status as an employee at the Yazoo City facility, the
defendant acknowledged his guilt and the district court accepted
the plea.
On October 9, 2001, Baymon was sentenced to six months in
prison on each count, to run concurrently; three years of
supervised release, and a $200 special assessment.
On appeal, Baymon argues that neither his unconditional guilty
plea nor the appeal waiver contained in his plea agreement prevents
this appeal. He argues that the factual basis was insufficient to
support his plea insofar as it failed to establish that he was a
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“public official” pursuant to 18 U.S.C. § 201(a). Further, Baymon
argues that the district court clearly erred in failing to award
him a reduction in his sentence for acceptance of responsibility.
The Government argues that Baymon has waived his opportunity
to challenge the factual basis of the bill of information by virtue
of his unconditional guilty plea and the appeal waiver provision in
the plea agreement. Morever, according to the government, under
the plain error standard the evidence was sufficient to show that
Baymon was a “public official” within the meaning of 18 U.S.C. §
201. Finally, the government asserts that the district court
properly refused to award Baymon a reduction in sentence for
acceptance of responsibility.
DISCUSSION
Whether Baymon’s guilty plea and waiver of his right to appeal in
the plea agreement prevent the Court from addressing this appeal.
This Court must determine whether Baymon’s unconditional
guilty plea with his admission that he was a public official and
his waiver of his right to appeal in his written plea agreement
prevent his appeal in this case. This is a question of law and,
therefore, we review the issue de novo. United States v. Izydore,
167 F.3d 213, 223 (5th Cir. 1999).
The right to appeal a conviction and sentence is a statutory
right, not a constitutional one, and a defendant may waive it as
part of a plea agreement. United States v. Dees, 125 F.3d 261, 269
(5th Cir. 1997)(“So long as a plea is informed and voluntary, we
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will enforce a waiver of appeal.”), cert. denied, 522 U.S. 1152
(1998). However, even if there is an unconditional plea of guilty
or a waiver of appeal provision in a plea agreement, this Court has
the power to review if the factual basis for the plea fails to
establish an element of the offense which the defendant pled guilty
to. United States v. Spruill, 292 F.3d 207, 214-15 (5th Cir. 2002)
(vacating sentence because factual basis was not established as to
an element of the charge, that being that predicate order was
issued after a “hearing” as contemplated by 18 U.S.C. §
922(g)(8)(A)); United States v. White, 258 F.3d 374, 380, 384 (5th
Cir. 2001) (reversing because bill of information did not establish
the existence of the predicate offense required for conviction
under 18 U.S.C. § 922(g)(9)); United States v. Johnson, 194 F.3d
657, 659, 662 (5th Cir. 1999), vacated and remanded, 530 U.S. 1201
(2000), opinion reinstated with modification, 246 F.3d 749 (5th
Cir. 2001) (reversing because factual basis did not establish that
arson was of church that was used in or affected interstate
commerce, as required under 18 U.S.C. § 844(I)). “A trial court
cannot enter judgment on a plea of guilty unless it is satisfied
that there is a factual basis for the plea.” Johnson, 194 F.3d at
659. “The purpose underlying this rule is to protect a defendant
who may plead with an understanding of the nature of the charge,
but ‘without realizing that his conduct does not actually fall
within the definition of the crime charged.’” Id. (citing United
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States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984) (quoting
United States v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir. 1977))).
Although Spruill, White, and Johnson are not directly
applicable to this case because in those cases either the bill of
information failed to allege a factual element of the crime, or the
defendant brought a motion to dismiss before pleading guilty, or
the plea agreements were conditional, the Court in those cases
allowed the defendants to appeal issues which by the terms of the
parties’ plea agreements were waived. Spruill, 292 F.3d at 211-12,
215; White, 258 F.3d at 380; Johnson, 194 F.3d at 659-60.
Accordingly, Baymon is challenging the sufficiency of the factual
basis for his plea, and we can review despite the waiver. This
Court, however, has not addressed what type of waiver provision, if
any, would be sufficient to “accomplish an intelligent waiver of
the right not to [be] prosecuted (and imprisoned) for conduct that
does not violate the law.” Spruill, 292 F.3d at 215 (citing White,
258 F.3d at 380) (internal quotations omitted). And it is
unnecessary to do so in this case, because, as we indicate below,
it was not plain error to accept that Baymon was a public official,
as defined by 18 U.S.C. § 201(a) and, therefore, there was a
sufficient factual basis to support the plea.
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Whether Baymon was a public official so that the factual basis was
sufficient to support his guilty plea to the bribe charges.
This Court needs to determine whether it was error for the
district court to accept Baymon’s plea based on the fact that he
was an employee of the Bureau of Prisons at time of the offense and
he admitted to being a public officer. Baymon did not object in
the district court that he was not a “public official.” Therefore,
we apply the plain error standard to his sufficiency challenge, as
the issue is raised for the first time on appeal. United States v.
Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc), cert. denied,
122 S. Ct. 37 (2001). Plain error requires Baymon to show “(1) an
error; (2) that is clear or plain; (3) that affects [his]
substantial rights; and (4) that seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). While there
is no controlling authority on point indicating Baymon is clearly
not a “public official” and therefore could establish plain error,
this Court has nonetheless stated in Spruill that the fact that the
particular factual and legal scenario presented does not appear to
have been addressed in any other reported opinion does not preclude
an asserted error from being sufficiently plain to authorize
reversal. 292 F.3d at 215 n.10. Therefore, we must address who is
a “public official” and find error only if Baymon is plainly not a
“public official.”
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Section 201 defines the term “public official” to include “an
officer or employee or person acting for or on behalf of the United
States, or any department, agency or branch of Government thereof,
. . . in any official function, under or by authority of any such
department, agency, or branch of Government.” 18 U.S.C. §
201(a)(1). The federal bribery statute “has been accurately
characterized as a comprehensive statute applicable to all persons
performing activities for or on behalf of the United States,
whatever the form of delegation of authority.” Dixson v. United
States, 465 U.S. 482, 496 (1984) (internal citations and quotations
omitted).
In United States v. Thomas, this Court held that a privately
employed guard whose employer contracted with the INS to house INS
detainees was a “public official” under § 201, because he performed
the same duties as a federal corrections officer and thus occupied
a position of trust with official federal responsibilities. 240
F.3d 445, 448 (5th Cir.), cert. denied, 532 U.S. 1073 (2001). In
so holding, this Court distinguished Krichman v. United States, 256
U.S. 363 (1921), in which the Court refused to hold that a baggage
porter who was bribed to deliver furs at a time when the government
had taken possession of the railroad system was a “public
official,” because he was not acting for the United States in an
official function. Thomas, 240 F.3d at 448 (citing 256 U.S. at
366).
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In this case, the bill of information classifies Baymon as a
“public officer” by virtue of his employment with the Bureau of
Prisons at a federal correctional facility. R. at vol. 1, p. 2.
Baymon admitted to being a “public officer.” R. at vol. 2, p. 9.
Baymon agreed with the prosecutor’s Memorandum of Understanding,
which indicated Baymon was a public official. R. at vol. 2, p. 12-
13. Finally, Baymon states in his brief that he was a “cook
foreman” employed at the Yazoo City Facilty. Brief for Appellant
at 3.
The fact that Baymon was a federal employee with official
functions is sufficient, under the plain error standard, to find he
is a public official. See 18 U.S.C. 201(a). Moreover, Baymon’s
case is distinguishable from Krichman insofar as Baymon was
employed by the Bureau of Prisons, which is different from
employment with a private railroad company that was taken over for
a time by the federal government. See Krichman, 256 U.S. at 366.
And, although his position as supervisory cook arguably does not
give him the same amount of official functions to carry out as a
correctional officer, he nonetheless holds a position with some
degree of responsibility. See Thomas, 240 F.3d at 448. The record
is scant as to Baymon’s responsibilities but the fact that he
violated rules of employment as a federal employee by accepting a
thing of value in exchange for smuggling in contraband and was
therefore released from his employment is sufficient factual
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support to find, under the plain error standard, that he had
responsibilities which he did not keep. Thus he is not plainly
outside of the definition of “public official.” Therefore, there
was a sufficient factual basis for accepting a guilty plea.
Whether Baymon should have received an adjustment for acceptance of
responsibility
In his plea agreement, Baymon expressly waived appeal of the
“sentence imposed in this case, or the manner in which that
sentence was imposed, on the grounds set forth in Section 3742, or
on any ground whatsoever.” R. at vol. 1, p. 15. A defendant may
waive his statutory right to appeal as part of a valid plea
agreement if the waiver is made knowingly and voluntarily. United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Any appeal
in contravention of the waiver provision should be dismissed. Id.
at 568. Under Federal Rule of Criminal Procedure 11(c)(6), the
district court must advise the defendant of "the terms of any
provision in a plea agreement waiving the right to appeal or to
collaterally attack the sentence." Fed. R. Crim. P. 11(c)(6).
In this case, the district court instructed the prosecutor to
inform Baymon of any appeal waiver provision in the plea agreement.
The Prosecutor responded that the agreement provided that “the
defendant waive[d] his right to appeal the conviction and the
sentence imposed in this case on any ground, and he also waives all
post-conviction attacks upon his conviction or sentence.” R. at
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vol. 2, p. 13. Baymon did not argue then, nor does he now, that
the waiver provision was made unknowingly or involuntarily;
therefore, he has waived his right to appeal the sentence.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, for the reasons set forth above we
conclude that there was no plain error and there was a sufficient
factual basis to accept Baymon’s plea. Furthermore, Baymon has
waived his appeal as to sentencing. Accordingly, we DISMISS THE
APPEAL as to sentencing, and AFFIRM his conviction.
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