Case: 16-50874 Document: 00514163462 Page: 1 Date Filed: 09/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50874
Fifth Circuit
FILED
Summary Calendar September 20, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ROBERT TIMOTHY BLAKE, also known as Robert Blake, also known as
Rodger T. Blake,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:15-CR-66-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Robert Timothy Blake pleaded guilty pursuant to a plea agreement to
distribution of child pornography and possession of child pornography. The
plea agreement contained an appeal waiver, in which he waived the right to
appeal his sentence on any ground but reserved the right to challenge his
sentence based on claims of ineffective assistance of counsel or prosecutorial
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-50874
misconduct. He contends that the Government breached the plea agreement
when it made the following statements at the sentencing hearing: Blake took
photographs of neighborhood children on a camera found during the execution
of a search warrant of his residence; he sexually abused his daughter; and he
fled from Rhode Island to evade an investigation of his alleged possession of
child pornography.
Because Blake did not object to a breach in the district court, review is
limited to plain error. See United States v. Hebron, 684 F.3d 554, 557-58 (5th
Cir. 2012). To show plain error, he must show a forfeited error that is clear or
obvious and that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, this court has the
discretion to correct the error but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citations omitted). Blake has not shown that the Government’s
statements constituted a clear and obvious breach of the plea agreement. See
id; Hebron, 684 F.3d at 557-58; United States v. Casillas, 853 F.3d 215, 218
(5th Cir. 2017), petition for cert. filed (June 27, 2017) (No. 17-5081); United
States v. Hinojosa, 749 F.3d 407, 413-14 (5th Cir. 2014).
Because no breach of the plea agreement invalidated the appeal waiver,
we will examine whether the waiver is otherwise knowing and voluntary. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Blake did not
specifically object to the district court’s compliance Federal Rule of Criminal
Procedure 11(b)(1)(N) and, therefore, review is limited to plain error. See
United States v. Oliver, 630 F.3d 397, 411-12 (5th Cir. 2011).
At rearraignment, the district court advised Blake that he had waived
his right to appeal his sentence, except for claims of ineffective assistance of
counsel and prosecutorial misconduct; Blake stated that he understood and did
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No. 16-50874
not express any confusion or ask any questions concerning the appeal waiver.
Blake knowingly and voluntarily waived his right to appeal, and the appeal
waiver is valid and enforceable. See United States v. Jacobs, 635 F.3d 778, 781
(5th Cir. 2011). Therefore, Blake’s remaining claims challenging the
substantive reasonableness of the sentence and the adversarial nature of the
sentencing hearing are barred by the appeal waiver. See id.
APPEAL DISMISSED.
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