United States v. Don Andrew, Jr.

Fifth Circuit

United States v. Don Andrew, Jr.

667 F. App'x 841

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 1, 2016

Docket15-30202 Summary Calendar

StatusUnpublished

This text of 667 F. App'x 841 (United States v. Don Andrew, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Don Andrew, Jr., 667 F. App'x 841 (5th Cir. 2016).

Pincite

Opinion

PER CURIAM: *

Don M. Andrew, Jr., pleaded guilty to multiple counts of conspiracy, arson, wire and mail fraud, and use of fire to commit a federal felony and was sentenced to a total of 240 months of imprisonment and a five-year term of supervised release. Andrew’s plea was made pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, which stipulated that the parties agreed to the imposition of a 240-month sentence and contained a waiver of the right to appeal.

On appeal, Andrew argues that the district court plainly erred by failing to provide fact-specific reasons for imposing the sentence. The Government moves to dismiss the appeal as barred by a knowing and voluntary appeal waiver, or alternatively, for summary affirmance or an extension of time to file a merits brief.

To determine whether Andrew’s appeal of his sentence is barred by the appeal waiver, we analyze whether the waiver was knowing and voluntary and whether the waiver applies to the circumstances at hand, based on the plain language of the agreement. United States v. Bond, 414 *842 F.3d 542, 544 (5th Cir. 2005). As Andrew concedes, his challenge to his sentence falls within the scope of his appeal waiver. Further, the record reflects that Andrew knew that he had a right to appeal and that he was giving up that right; thus, the waiver was knowing and voluntary. United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005). Although he asserts that he could not have knowingly and voluntarily waived his right to appeal his sentence before it was imposed, “the uncertainty of [an] Appellant’s sentence does not render his waiver uninformed.” United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).

Accordingly, the Government’s motion to dismiss is GRANTED, and the appeal is DISMISSED. The Government’s alternative motion for summary affirmance is DENIED, and the motion for an extension of time to file a merits brief is DENIED as unnecessary.

*

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.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM: *

Don M. Andrew, Jr., pleaded guilty to multiple counts of conspiracy, arson, wire and mail fraud, and use of fire to commit a federal felony and was sentenced to a total of 240 months of imprisonment and a five-year term of supervised release. Andrew’s plea was made pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, which stipulated that the parties agreed to the imposition of a 240-month sentence and contained a waiver of the right to appeal.

On appeal, Andrew argues that the district court plainly erred by failing to provide fact-specific reasons for imposing the sentence. The Government moves to dismiss the appeal as barred by a knowing and voluntary appeal waiver, or alternatively, for summary affirmance or an extension of time to file a merits brief.

To determine whether Andrew’s appeal of his sentence is barred by the appeal waiver, we analyze whether the waiver was knowing and voluntary and whether the waiver applies to the circumstances at hand, based on the plain language of the agreement. United States v. Bond, 414 *842 F.3d 542, 544 (5th Cir. 2005). As Andrew concedes, his challenge to his sentence falls within the scope of his appeal waiver. Further, the record reflects that Andrew knew that he had a right to appeal and that he was giving up that right; thus, the waiver was knowing and voluntary. United States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005). Although he asserts that he could not have knowingly and voluntarily waived his right to appeal his sentence before it was imposed, “the uncertainty of [an] Appellant’s sentence does not render his waiver uninformed.” United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).

Accordingly, the Government’s motion to dismiss is GRANTED, and the appeal is DISMISSED. The Government’s alternative motion for summary affirmance is DENIED, and the motion for an extension of time to file a merits brief is DENIED as unnecessary.

*

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.

Cite This Page — Counsel Stack

Bluebook (online)

667 F. App'x 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-don-andrew-jr-ca5-2016.

Opinion

Related

Cite This Page — Counsel Stack