United States v. Cleveland

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51137 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TYRONNE DESHON CLEVELAND,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CR-76-2-JN -------------------- June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Tyronne Deshon Cleveland pleaded guilty pursuant to a plea

agreement to one count of conspiracy to possess with intent to

distribute heroin. The plea agreement contained a waiver-of-

appeal provision. Cleveland’s sole argument before this court is

that the waiver provision is unenforceable because the magistrate

judge did not ask Cleveland if he had read and understood the

waiver provision and because Cleveland received insufficient

benefits from the plea agreement.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-51137 -2-

A defendant may waive his statutory right to appeal as part

of a valid plea agreement if the waiver is knowing and voluntary.

United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992).

The defendant must know that he had a right to appeal his

sentence and that he is giving up that right. Id.; United States

v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).

Our review of the record reveals 1) that the plea agreement

and the waiver-of-appeal provision were discussed in the plea

agreement Cleveland signed, at Cleveland’s guilty-plea hearing,

and at sentencing before the district court accepted the

magistrate judge’s recommendation to accept the plea and 2) that

Cleveland understood his right to appeal and waived it. See

Portillo, 18 F.3d at 292-93. Cleveland’s challenge to the

waiver-of-appeal provision is without merit.

AFFIRMED.